James Acton is a student in the Vernonia School District
("the District") in northwest Oregon.He doesn't use illicit drugs, and the District has no reason to
suspect he does.And yet it will not
let James participate in school sports unless he consents to produce urine on
demand to be tested for evidence of illicit drug use.The issue is whether this drug‑testing requirement violates
James's rights under the state and federal constitutions to be free from
unreasonable searches.

A. Background

The District operates four schools, including Washington Grade
School, in Vernonia, Oregon, a small, logging community in the Coast Range an hour
west of Portland.(R. 18;Pl. Ex. 5 at 6).About 700 students attend these schools, and most of them
participate in at least one of the seven interscholastic sports the District
offers for grades seven and up:football, basketball, cross country, track, volleyball, wrestling, and
golf.(Pl. Ex. 5 at 7;J.A. 20, 37).In the late 1980s, the school board concluded that it had a drug
"problem" within the student body generally and the sports program
particularly.The board's first
reaction was to try to persuade students through lectures and assemblies that
drugs can be harmful.(J.A. 25‑26).But, impatient for immediate results, it
soon switched from persuasion to coercion. First, it brought in a drug‑sniffing
dog‑‑but only for one day‑‑to search student
lockers.(R. 25, 34‑35).Then, in the fall of 1989, it adopted a
mandatory drug‑testing program for any student who wishes to participate
in school sports.The purpose of the
program is to protect the "health and safety" of athletes, according to
the District's "policy statement," as well as the officials who
designed the program and enforce it.(J.A. 7, 27‑28, 61; Pl. Ex. 5 at 16).

*2
B. The Drug "Problem"

It is important to carefully describe Vernonia's drug
"problem," because the District persistently overstates it.For example, in its petition for a writ of
certiorari, the District told this Court that an "epidemic" of drug
use within the student body "invaded" the sports program,
"endangering the very center of activity of the school and the
community," and leaving the school board with no alternative to drug
testing but "mass expulsion" of students. Pet. at 3, 7 and 10‑11.The District tones down the rhetoric in its
brief on the merits, but nevertheless tries to paint the same picture. E.g., Pet. Br. at 28 (referring to a
"crisis in the classroom and the sports program").In fact, there is little evidence of
Vernonia students using drugs, and no evidence of any athlete in Vernonia ever
competing while on drugs, let alone causing or sustaining injury.

The evidence consists almost entirely of complaints by a few
teachers and administrators about a perceived decline in student deportment in
the mid‑ to late‑1980s.Students generally seemed to be less well‑mannered than anyone
remembered.Some of them refused to pay
attention in class, said rude, obscene, and disrespectful things, laughed aloud
at serious moments, and generally acted like juveniles‑‑at least,
it appeared to some teachers that more students were behaving this way than
ever before.(J.A. 21‑22, 39‑40,
47‑ 48, 60‑61, 66‑67).School officials were particularly disturbed by a group of students who
called themselves "the Big Elks." It is unclear how many students
were at the "core" of this group‑‑one teacher said four
to six (R. 81), which is less then one percent of the student body;another said ten.(J.A. 60). In any event, the Big Elks went around campus
"bugling" and "butting" their heads together in an
adolescent attempt to demonstrate their "camaraderie." (J.A.
41).Another group‑‑likewise
of uncertain size‑‑called itself the "Drug Cartel" and
exhibited equally strange behavior.(*3 J.A. 48).There is no evidence, however, that any "Elk" or
"Cartellian" ever actually used drugs or that drugs were the reason
why they behaved as they did.(J.A.
52).

The perceived decline in student behavior coincided with an
increase in the number of students referred by teachers to administrators for
discipline‑‑known locally as "disciplinary
referrals."(R. 44, 69).For want of some other explanation for the
downturn in student deportment, the teachers concluded that drug use was on the
rise within the student body, contrary to national and statewide trends.(J.A. 77).This assumption was supported, at least in the teachers' minds, by
unconfirmed, second‑hand reports of off‑campus drug use, almost all
of it hearsay or hearsay within hearsay, [FN1] received over the Actons'
continuing objections, [FN2] and by reports of students romanticizing drugs in *4 papers and hallway conversations.
[FN3]But only one of the teachers who
testified at trial reported that she ever actually observed any student taking
drugs. [FN4]

FN1. For example, Randy Aultman, a
principal, testified:"Four
football players talked to the football coach and admitted that they have used
drugs, and amphetamines were those drugs, and the coach told me[.][T]he kids
never came forward and said, you know, they did...."(J.A. 23).In other words, four students told the football coach that they had used
amphetamines.The coach told Mr.
Aultman what he had heard, and he repeated it at trial as if it were fact.Later, Mr. Aultman admitted that he had
never actually seen or caught a student taking drugs and that he was acting on
second‑hand reports.(J.A. 36).

Ron Svenson, a coach and teacher,
testified:"When I was an
assistant coach the head football coach was called in and I believe it was in
the football season of '85 and
apprised of the fact that parents called and said that some of their sons‑‑that
other kids on the team had done drugs on a road trip...."(J.A. 53).In other words, the football coach told Mr. Svenson that some parents
told the football coach that some students told the parents that some other
students had taken drugs during a road trip.

FN2. As the District notes, Pet. Br. at
4, n. 3, the trial court granted the Actons a continuing objection, on hearsay
grounds, to these second‑ and third‑hand reports of students using
drugs.(J.A. 22‑23;R. 107, 109‑10). The court said it
would not receive this evidence for the purpose of proving that students
actually were using drugs, because that would be hearsay, but would receive it
for the limited purpose of explaining why school officials acted as they
did.(J.A. 23;R. 116‑17, 143‑44). Accordingly,
this evidence cannot support a finding that there was in fact a drug problem in
the school district, merely that school officials thought there was.The District's brief repeatedly ignores this
limitation on the use of its evidence.E.g., Pet. Br. at 6.

FN3. A teacher who taught composition
to 90 or so students each year for 13 years testified that 8 or 9 of them‑‑which
works out to less than one
percent of all of her students‑‑had written papers that
romanticized drugs.(J.A. 46, 48,
51).There is no evidence that any of
those students, or others who were overheard in the hallway bragging about drug
use, actually took drugs, or that this was anything but juvenile bravado.

FN4. Marsha King testified that she
looked out of a window of the high school and observed students at a cafe
across the street passing cigarettes back and forth.(J.A. 39;R. 80).She concluded that the cigarettes were
"joints," that is, contained marijuana, but did not explain how she
could tell, from that distance, that they did not instead contain tobacco. Nor
did she explain how many students she saw, when she saw them, or whether any of
them were athletes.On another
occasion, Ms. King saw a student who was obviously intoxicated, but on alcohol,
not drugs.(J.A. 40;R. 81).This was as close as Ms. King or any other witness came to direct
observation of any illicit drug use.

The District's assumption that every unruly student is unruly
because of drugs is, on its face, dubious and, on the record,
unsubstantiated.As noted above, there
is evidence that more students were misbehaving than before, but no evidence
that any, let alone many or most, of those students were acting up because of
drugs.Likewise, there is evidence that
disciplinary referrals were up, but no evidence *5 that any of those referrals involved drugs.Students who misbehaved in class were
"referred" whether or not drugs were suspected as the reason for
their misbehavior.(R. 83).Therefore, the District is not justified in
contending, based on referral numbers alone, that the downturn in student
deportment was completely, or even partly, drug‑driven. [FN5]

FN5. From the early to late 1980s,
disciplinary referrals went from 40 or 50 per year to double that.(J.A. 21).But, of course, one student could have multiple referrals, so the
absolute number of referrals is not very helpful in determining the number of
misbehaving students.

The Actons do not contend that Vernonia has managed, through
geographic isolation, to escape drug infiltration entirely, or that no students
in Vernonia were using drugs before the District adopted its drug‑testing
program.Nor do they contend that even
so much as one student on drugs would not be a "problem" and reason
for concern.Their point is simply that
it is misleading for the District to assert that drug use in Vernonia schools
had reached "epidemic" proportions, or anything like it, and that
"administrators and teachers foresaw the need for mass
expulsions."Pet. Br. at 29.
[FN6]On this record, the most that can
be said is that "some" students appeared to be taking drugs, which is
exactly what the court of appeals concluded when it reviewed the evidence.In a finding not challenged by the District,
the court of appeals said:"[W]e
reemphasize that what the evidence shows, and all it shows, is that there was
some drug usage in the schools...."23 F.3d at 1519 (Pet. App. 20a)(emphasis added).This is as far as the court of appeals *6 went in its findings, and as far as
the record allowed it to go. [FN7]

FN6. One witness testified that
"massive expulsion" or "some tremendous alternative,"
meaning, apparently, drug testing, were the only two solutions to the school's
disciplinary problems.(J.A. 26‑27).But this is clearly hyperbole.There is no evidence that any student was
expelled for using drugs or that the school board even considered expelling a
student for that reason, let alone masses of them.

FN7. The District argues that the trial
court's findings were endorsed by the court of appeals and thus are entitled to
"great weight" in this Court.Pet. Br. at 29, n. 23. It is true that this Court will defer to the
lower courts when they concur in their findings, but that is not what happened
here.The court of appeals did not
simply adopt the trial court's
findings as its own.To the contrary,
it reviewed the record and made its own observations about the extent of the
drug problem in Vernonia.See 23 F.3d
at 1512 (Pet. App. 2a‑4a).Moreover, although the court rejected the Actons' contention that there
was no evidence of actual drug use, merely perceived drug use, id. at 1519
(Pet. App. 18a‑19a), it immediately went on to "reemphasize"
that all the record shows is "some drug usage in the schools."Id. (Pet. App. 20a‑21a).The court appeared to studiously avoid words
like "epidemic" and "crisis," which punctuate the briefs of
the District and the amici supporting it.Indeed, the court noted that even the word "problem" may
misdescribe the situation:"Perhaps dubbing [the District's drug experience] a 'problem' is a
matter of perception or definition.What appears to be a problem in one place might seem to be a minor
annoyance elsewhere."23 F.3d at
1519 (Pet. App. 20a).

C. Drugs In The Sports Program

If there is little evidence of drug use in the classroom, there is
even less of it in the sports program.Indeed, the District conceded, in a pre‑trial interrogatory, that
it is unable to confirm so much as one drug‑related injury in the entire
history of its sports program.(J.A. 79‑80).This includes, of course, the period of time
when, the District now says, drug use was rampant in its schools. [FN8]As discussed *7 above, the District concluded that drug use was commonplace in
the classroom because of discipline problems there. There is no evidence,
however, of similar problems on the playing field.It follows that, if students were taking drugs, they were not
taking them before competing.

FN8. The District suspects that one
athlete may have been injured while competing on drugs, but the evidence in
support of that suspicion is skimpy at best.The wrestling coach, Ron Svenson, testified that a high school student
was injured in an "away" match when he failed to react as quickly as
the coach would have liked to a hold his opponent put on him.(J.A. 54‑ 55).A day later Mr. Svenson went to the hotel
room the wrestler was sharing with three other students.While there he smelled what he believed to
be marijuana and concluded that "somebody in the room was
smoking."Id. Of course, that
"somebody" was not necessarily the injured wrestler, and even if it
were, it does not follow that he had also smoked marijuana before competing the
day before or, if he did, that marijuana played any role in his injury.Mr. Svenson was the first to admit that this
evidence leads nowhere."There was
no way," he said, "of particularly proving at that point in time whether he was under the influence [during
the match]."(J.A. 56).

Mr. Svenson, who also coached football,
testified that he watched some football game films and noticed that some of the
students did not react to situations the way he taught them.This led him to wonder if they were under
the influence of drugs during the games.(J.A. 56).He never found out.

This was as far as the District got in
trying to prove that any student ever competed in a District‑sponsored
athletic event while under the influence of illegal drugs.

Perhaps the most telling evidence on the extent of drugs in the
sports program before the drug test is the evidence that only two students,
both in high school, have flunked the test.(Pl. Ex. 5 at 13‑15, 25;J.A. 38;R. 64). There are
several possible explanations for this near‑perfect record.One is that, as the District now contends,
many athletes were taking drugs before the drug test was enacted, but they all
quit immediately and en masse as soon as testing started.This seems unlikely, however, if drugs were
as embedded in the school culture, and are as addictive, as the District suggests.Another explanation is that, again, many
athletes were taking drugs, but they all chose to give up sports and *8 avoid the test rather than give up
drugs.There is no evidence, however,
that participation in school sports dropped off when the testing began and,
indeed, 110 students were tested in just the first three weeks of the
program.(Pl. Ex. 3 at 1;Pl. Ex. 5 at 19).A more plausible explanation for so few failed tests is that, in
fact, few athletes were taking drugs before testing started.

The District superintendent admitted that the District does not
know what percentage of students who play sports take drugs illegally and that
no effort has been made to find out except through the drug test.(Pl. Ex. 5 at 15). Since the test has detected
next to no one, the District is hard pressed now to argue that drugs
"invaded" the sports program;to the contrary, they appeared to have largely stayed out of it.

D. The Drug‑Testing Program

In response to its concern, justified or not, about drug use in
school sports, the school board decided to institute a mandatory drug‑testing
program for all student athletes.In
its present form, [FN9] the program prohibits students from participating *9 in school sports unless they
consent to have their urine tested for traces of certain illicit drugs:cocaine, marijuana, amphetamines and,
occasionally, LSD. (J.A. 8;Pl. Ex. 4
at 4‑5;Pl. Ex. 5 at 18).Notably absent from this list is perhaps the
most commonly abused drug, at all age levels, namely, alcohol.Pet. Br. at 9. Also excluded are steroids
and other substances designed to enhance athletic performance.(J.A. 86).

FN9. The original program was in force
from September 1989 to August 1990 (J.A. 7), and applied to any student who
participates in any extracurricular activity, athletic or nonathletic,
including, for example, band, drama, and student government.(Pl. Ex 5 at 16‑17;J.A. 29‑30). The District claims that
it amended the program to apply only to athletes in order "to assure its
legality."Pet. Br. 9. in fact, it
may have been motivated by funding concerns.As the Solicitor General explains in his brief, the District has
received $7,500 per year under a 1986 congressional act that authorized federal
grants to local schools for, among other things, "non‑discriminatory
random drug testing programs for students voluntarily participating in athletic
activities."Br. of United States
at 1‑2 and n. 1, quoting 20 U.S.C. s 3192(d)(emphasis added).If the District had stuck with its original
program, it would not have been "legal" to receive these funds.

In October, 1994, Congress reauthorized
the 1986 act, minus the provision for federal funding of drug tests.Br. of United States at 2, n. 1.

Athletes are tested at the start of each athletic season in which
they participate.(Pl. Ex. 5 at 221‑22).They are also subject to random tests,
conducted weekly during the season.Id.
The testing protocol depends on gender.Boys are taken to the locker room where, one at a time, they urinate
into a vial while a male faculty member, either Mr. Aultman, the grade school
principal, or Mr. Svenson, a teacher and coach in the high school, waits close
behind.(Pl. Ex. 4 at 3).Mr. Aultman testified that sometimes he
watches the student produce the urine sample, but often he just listens.(J.A. 31‑32). Mr. Svenson denied
watching or listening, but both he and Mr. Aultman admitted that that is why
they are there:to observe the students
so they don't cheat.(J.A. 32;R. 138‑39).The students, of course, don't know whether or when the monitor
is watching them.The procedure for
girls is sightly different.They
produce their samples, one at a time, in an enclosed stall while a female
teacher stands outside listening through a vent in the door for the normal
sounds of urination.(J.A. 42;R. 78‑79;Ex. 4 at 4;Ex. 5 at 21‑22).

Any student who refuses to be tested is automatically *10 suspended from the sports program
for the remainder of the athletic season.(J.A. 8).A student who flunks
the test‑‑that is, a student whose urine sample tests
"positive" for the target drugs‑‑is subject to specified
and escalating penalties.For a first
"offense," the student is given a choice between"[p]articipating in an assistance
program and taking weekly drug tests for six weeks" or "be[ing]
suspended from participating in athletics for the remainder of the current
season and the next season for which he/she is eligible."(J. A. 9).For a second "offense," the first option is removed;the student is suspended for the remainder
of the current season and all of the next season. Id. A third
"offense" results in suspension through the next two seasons.Id.

In addition to submitting their urine for inspection, students who
have been taking prescription drugs "must provide verification (either by
a copy of the prescription or by doctor's authorization) prior to being
tested."(J.A. 8). [FN10]This information is then shared with the lab
that tests the urine to aid in interpreting the test results.(Stip. Test. of R. Velander at 3).

FN10. The form the District uses also
requires the students to identify their nonprescription medications and the
names of their treating physicians.(Def. Ex. 109 at 1, C).

The District superintendent, principals, vice principals, and
athletic directors have direct access to the test results.(J.A. 29).Also, other officials who are involved in the ensuing due process
hearing, counseling programs, and weekly repeat drug tests will necessarily
find out when a student tests positive.

E. Effect Of Drug Testing

The District asserts that the drug‑testing policy
accomplished its goal of discouraging athletes from competing while on
drugs.But since there is no evidence
that any students *11 were doing
that, and since there were as many drug‑related injuries before the policy
took effect as after‑‑to wit, none‑‑it is impossible to
conclude that the policy accomplished anything except to invade student
privacy.

It is true that some teachers noted an improvement in classroom
behavior after the policy was adopted, but that wasn't the goal of the policy‑‑at
least not the stated goal.And since
there is no basis for finding that all of the previously unruly students were
unruly because of drugs, there is likewise no basis for concluding that the
policy had anything to do with the turnaround in their behavior.

Even if classroom discipline was entirely drug‑driven, and
even if the improvement in discipline was due solely to a decline in drug use‑‑big
ifs on this record‑‑it still cannot be asserted, without guesswork,
that the decline in drug use was due to drug testing, rather than to the
District's other, ongoing drug education and counseling prograins, which the
superintendent called "effective."(R. 63‑64;Pl. Ex. 5 at
20).The drug‑testing program is
"only a small part" of the District's anti‑drug campaign,
according to the program's author.(Pl.
Ex. 3 at 1).That being so, the
District is not justified in now claiming that drug‑testing was solely
responsible for whatever improvement there may have been in the drug
"problem."

The District's own expert, Dr. Robert DuPont, testified that drug
use among high school students has declined steadily, both across the state and
across the nation, since the mid‑1980s, which includes the period of time
when the District's drug‑testing policy was in force.(J.A. 77).Whatever caused this trend‑‑Dr.DuPont attributes it to decreasing societal tolerance of drugs
and widespread publicity over the death of Len Bias from an overdose of cocaine
(id.)‑‑may also account for the trend in Vernonia, if in fact there
was one there.

*12
As the District notes, one teacher thought that student grades improved post‑testing,
Pet. Br. at 12, but the District offered no evidence, such as summaries of
transcripts or test results, to support that observation.

F. The Drug Test Applied To James

In the fall of 1991, James was 12 years old and a seventh grader
in Washington Grade School.He was
interested in sports and tried out for the football team.(J.A. 16;R. 6‑7).On the first day
of practice, the coach gave him a drug‑testing consent form, which he
took home and discussed with his parents.They‑‑James and his parents‑‑decided not to
sign.(J.A. 16‑17;R. 7‑8).For that reason alone, the District kicked James off the team and
declared him ineligible for school sports until he consents to drug
testing.(R. 8‑9, 12‑ 13).

James's father, Wayne, testified that he believes the drug test is
an invasion of James's privacy and a violation of his civil rights.(R. 9).He also expressed concern that drug‑testing sends the wrong
message to students:a message that, in
the government's eyes, everyone is presumed guilty‑‑in James's
case, guilty of using illicit drugs‑‑until proven innocent.(R. 9‑10).There is no question, however, that James is innocent.As the court of appeals found, "[n]o
evidence suggest[s] that James has ever used drugs or that the District has any
reason to suspect that he has."23
F.3d at 1517 (Pet. App. 9a).

G. The Proceedings Below

James's parents, on his behalf, brought this action to enjoin the
District from enforcing its drug‑testing program against him.In their complaint, they alleged that the
program violates his rights under the Fourth Amendment and Article 1, section
9, of the Oregon Constitution, both of which prohibit "unreasonable"
government searches.(J.A. *13 3‑6).Following a bench trial, the district court
found no violation of either constitution and entered judgment for the
District.Acton v. Vernonia School
Dist. 47J, 796 F.Supp. 1354 (D.Or. 1992)(Pet.App. B).The Actons appealed,
and the court of appeals unanimously reversed.Acton v. Vernonia School Dist. 47J, 23 F.3d 1514 (9th Cir. 1994) (Pet.
App. A).

At the outset of its opinion the court of appeals announced that
it was"constrained, in the first
instance, to decide this case on Oregon constitutional grounds," 23 F.3d
at 1518 (Pet. App. 16a), "in order to avoid addressing federal
constitutional claims unnecessarily."Id. (Pet. App. 12a‑ 13a).This was possible, the court said, because Article I, section 9, and the
Fourth Amendment are not "coextensive" and, moreover, the state
provision is more protective than the federal provision‑, "We can
say with absolute confidence that the Oregon Constitution will not be construed
to offer less protection than the Fourth Amendment.[And][i]t is highly likely that it will be found to offer more
protection."Id. (Pet. App. 16a).

A leading Oregon case on suspicionless searches is State v.
Tourtillott,618 P.2d 423 (Or. 1980),
cert. denied, 451 U.S. 972 (1981), which approved a police roadblock set up on
the opening day of deer season to check for unlicensed hunters.In reaching that decision, the Oregon
Supreme Court relied primarily on this Court's opinion in Delaware v. Prouse,
440 U.S. 648 (1979).Accordingly, the
court of appeals turned to Prouse for guidance in construing Article 1, section
9. From Prouse, the court "distilled" four factors to consider in
evaluating a suspicionless search:"(1) the importance of the governmental interests [served by the
search];(2) the degree of physical and
psychological intrusion on the citizen's rights;(3) the amount of discretion the procedure vests in individual
officials;and (4) the efficiency of
the procedure‑‑that is[,] how well it contributes to the *14 reaching of its purported goals
and how necessary it is."23 F.3d
at 1521 (Pet. App. 31a).

Taking these factors in reverse order, the court concluded, first,
that the"efficiency" factor
weighed in favor of the drug‑testing program, but only "slightly."Id. at 1522 (Pet. App. 34a).It next concluded that the
"discretion" factor also favored the District's position, because the
drug test is "completely random."Id. (Pet. App. 36a).That left
two factors‑‑ "intrusiveness" and "importance"‑‑and
those factors, the court said, "are dispositive."Id. (Pet. App. 37a).

Compelled urinalysis is a substantial intrusion on privacy, the
court explained, for schoolchildren as well as adults.It noted that "[c]hildren are compelled
to attend school, but nothing suggests that they lose their right to privacy in
their excretory functions when they do so."Id. at 1525 (Pet. App. 52a)(emphasis in original)."Nor can we say," the court
continued, "that the privacy interests of athletes are substantially lower
than those of students in general."Id. at 1525 (Pet. App. 53a).

Turning, then, to the District's interest in drug testing, the
court observed that those interests‑‑preventing unnecessary
athletic injuries, reducing the attraction of drugs among other students, and
improving discipline‑‑"are not minimal."Id. at 1526 (Pet. App. 56a).But, the court said, those interests

suffer by comparison to the kinds of dangers that have existed when
random drug testing has been approved.The extreme dangers in hazards involved in the prior cases are simply
not present here.The prospect that an
athlete mighthurt himself or a competitor is real enough, but it is not a risk
of the same magnitude as an airplane or train wreck, or a gas pipeline or
nuclear power plant disaster....

*15
Id. at 1526 (Pet. App. 56a‑57a).

Balancing all of the factors, the court concluded:

[W]hen we mix all of the elements together‑‑the slight
weight in favor of efficiency, the privacy interests, the governmental
interest, and the discretionary factor‑‑and step back to look at
the compound they yield, it becomes apparent that the policy violates the
Fourth Amendment.It follows that it
also violates Article 1, Section 9[,] of the Oregon Constitution.

Id. at 1526 (Pet. App. 59a‑60a).

The District petitioned this Court to consider whether its drug‑testing
program offends the Fourth Amendment, not whether it offends Article 1, section
9, and, indeed, the District has not briefed the latter issue.For reasons set forth below, the Court should
hold that the policy does violate the Fourth Amendment.If, however, the Court holds otherwise, that
should not end the case.Instead, it
should be remanded to the court of appeals to determine, once again, whether
the program nevertheless violates the more‑shielding state
constitution.As the court of appeals
put it, the Fourth Amendment merely establishes "the floor," not
"the ceiling," for a lawful search in Oregon. 23 F.3d at 1521 (Pet.
App. 33a). [FN11]

FN11. In their brief opposing the
petition for a writ of certiorari, the Actons argued that the Court should deny
the writ because the decision below Tests on state law.The Actons will not repeat that argument
here, but do not thereby concede that it is proper or advisable for the Court
to hear this case.They urge the Court
to dismiss the writ as improvidently granted.

*16
SUMMARY OF ARGUMENT

The Fourth Amendment applies to searches conducted by school
officials, New Jersey v. TL.O., 469 U.S. 325 (1969), and drug testing by
urinalysis is a search.Skinner v.
Railway Labor Executives' Assn, 489 U.S. 602 (1989).

As a general rule, the government cannot search a person without
reason to suspect that he or she is guilty of wrongdoing.There is an exception, however, in limited
circumstances, where:(1) the search
serves some "special need" beyond the normal need for law
enforcement;(2) the government's
interest in searching is compelling;and (3) the privacy interests affected by the test are minimal.Skinner, 489 U.S. at 624.Applying this balance‑of‑
interests test, the Court upheld drug‑testing programs for railroad
employees who are involved in major train wrecks, Skinner, and customs agents
who carry lethal weapons, engage in the direct interdiction of narcotics, or
have access to sensitive government information, National Treasury Employees
Union v. Von Raab, 489 U.S. 656 (1989).The Court concluded in Skinner and Von Raab that the employees covered
by the tests are engaged in safety‑ or security‑sensitive
activities, and often "discharge duties fraught with such risks of injury
to others that even a momentary lapse of attention can have disastrous
consequences."Skinner, 489 U.S.
at 628.The government's
"compelling" interest in preventing these "disastrous
consequences" justified the substantial invasion of privacy that drug
testing causes.

The District's drug‑testing program fails the Skinner and
Von Raab balancing test.First, drug
testing by urinalysis is no less invasive and degrading for minors than it is
for adults.Students do not surrender
their expectations of privacy in their excretory functions when they attend
school or go out for sports, and nothing in their experience in the classroom
or on the playing field prepares them for the school's present demand to
produce urine for inspection.

*17
Second, the District's test procedures are much more intrusive than the
procedures upheld in Skinner and Von Raab. The District requires students to
produce the urine sample on demand, in school, and under observation by school
officials.In Skinner and Von Raab, by
comparison, the urine sample was collected by an independent monitor at an
independent site and, at least in Von Raab, with five‑days advance
notice.Furthermore, the District
requires students to disclose to school officials all of their prescription
medications, thus enabling the officials to learn, even without testing,
intimate details of the students' private lives.

Third, the goal of the District's drug‑testing program‑‑preventing
drug‑ related athletic injuries‑‑is much less compelling than
the goals of the programs upheld in Skinner and Von Raab:preventing train wrecks, misuse of deadly
weapons, compromise of the nation's borders, and disclosure of state secrets.Junior high school athletics is not
"safety‑" or "security‑ sensitive," as those
terms are used in Skinner and Von Raab. The typical sports injury in Vernonia
is a pulled muscle or torn ligament, and the District has never even had an
injury that it can relate to drugs.

ARGUMENT

THE DISTRICT'S DRUG‑TESTING
PROGRAM VIOLATES THE FOURTH AMENDMENT

A. The Fourth Amendment Applies To School Searches

Public school students do not "shed their constitutional
rights ... at the schoolhouse gate."Tinker v. Des Moines Indep.Community
School Dist., 393 U.S. 503, 506 (1969);see also New Jersey v. T.L.O., 469 U.S. at 334;West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 637 (1943).The
Fourth Amendment, in particular, protects students *18 while in school.In
New Jersey v. T.L.O., the Court squarely held that school officials must comply
with Fourth Amendment strictures when they search students on school grounds.
469 U.S. at 333‑37.

Indeed, it is important for them to comply scrupulously."Schools," it has been noted,
"are places where we inculcate the values essential to the meaningful
exercise of rights and responsibilities by a self‑governing
citizenry."Id. at 373 (Stevens,
J., concurring in part and dissenting in part)."The values [students] learn there, they take with them in
life."Id. at 386.One of our most cherished values, of course,
is the right to privacy, which Justice Brandeis memorably described as
"the right to be let alone‑‑the most comprehensive of rights
and the right most valued by civilized men."Olmstead v. United States, 277 U.S. 438, 478 (1928)(Brandeis, J.,
dissenting).If a school is not careful
to protect that right on behalf of its students, they will naturally come to
view the Fourth Amendment and other constitutional prerogatives as mere
platitudes, not to be taken seriously.

The District's observation that "public schools are entrusted
with the difficult task of preparing students for citizenship," Pet. Br.
at 18, is true, of course, but it hardly supports the District's assertion that
school officials are somehow excused from the restraints the Constitution
places on all other governmental agents.To the contrary, the Court has repeatedly emphasized that "[t]he
authority possessed by the State to prescribe and enforce standards of conduct
in its schools, although concededly very broad, must be exercised consistently
with constitutional safeguards."Goss v. Lopez, 419 U.S. 565, 574 (1975).See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
at 637.As Justice Brennan once
observed:"Schools cannot expect
their students to learn the lessons of good citizenship when the school
authorities themselves disregard the fundamental principles underpinning our
constitutional freedoms."Doe v.
Renfrow, *19 451 U.S. 1022, 1027‑
28 (1981)(dissenting from denial of certiorari). [FN12]

FN12. It should be noted that the
oldest of the District's students are 18 years old, old enough to vote in
elections, Or. Const. art.II, s
2(1)(a), and to serve on juries, Or. Rev. Stat. s 10.030(2)(c), two of the most
important responsibilities of citizenship.

B. Drug Testing Is A "Search"

In Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 617,
the Court held that a drug test for adults was a "search" under the
Fourth Amendment, "[b]ecause it is clear that the collection and testing
of urine intrudes upon expectations of privacy that society has long recognized
as reasonable."The same can be
said of drug tests for minors.Thus,
the District's drug‑testing program is a search and must comply with the
Fourth Amendment.The District
agrees.Pet. Br. at 17, n. 13.

C. Standards For Drug Tests

The first clause of the Fourth Amendment prohibits
"unreasonable" searches.In
deciding what is reasonable, the Court has turned first to the Amendment's
second clause, which states that "no Warrants shall issue but upon
probable cause."Accordingly, the
Court has repeatedly held that, as a general rule, the government cannot search
a person without probable cause to suspect the person has done something
wrong.E.g., Dunaway v. New York, 442
U.S. 200, 214 (1979);Chambers v.
Maroney, 399 U.S. 42, 51 (1970).Even
in cases involving brief, minimally intrusive searches, the Court has almost
always insisted upon some individualized suspicion of wrongdoing.E.g., Terry v. Ohio, 392 U.S. 1, 30 (1968).

The history of the Fourth Amendment illustrates the importance of
the individualized suspicion requirement.The *20 Amendment was drafted
in reaction to the "general warrants" that allowed British officers
to search at large through colonial homes and businesses for evidence of crime,
anti‑Crown literature, and illegally imported goods.See generally Marshall v. Barlow's, Inc.,
436 U.S. 307, 311 (1978);United States
v. Chadwick, 433 U.S. 1, 7‑8 (1977);Stanford v. Texas, 379 U.S. 476, 481‑85 (1965);Frank v. Maryland, 359 U.S. 360, 363‑65
(1959)."The vivid memory by the
newly independent Americans of these abuses produced the Fourth Amendment as a
safeguard against such arbitrary action by officers of the new union...."
Frank, 359 U.S. at 363.Consistent with
its historic origins, this Court has held that "some quantum of
individualized suspicion is usually a prerequisite to a constitutional search
and seizure."United States v.
Martinez‑Fuerte, 428 U.S. 543, 560 (1975).

Because individualized suspicion lies at the very core of the
Fourth Amendment, the Court has strictly limited the circumstances in which the
government may search without it.For
example, suspicionless searches are almost never allowed in criminal cases.See Skinner, 489 U.S. at 619 ("Except
in certain well‑defined circumstances, a search or seizure in [a criminal
case] is not reasonable unless accomplished pursuant to a judicial warrant
issued upon probable cause").And,
even where a search serves "special governmental needs, beyond the normal
need for law enforcement," it is still necessary to "balance the
individual's privacy expectations against the government's interests to
determine whether it is impractical to require a warrant or some level of individualized
suspicion in the particular context." National Treasury Employees Union v.
Von Raab, 489 U.S. at 665‑66, citing Skinner, 489 U.S. at 619‑20.

This is not a toothless test, and the mere invocation of
"special needs" does not justify a suspicionless search.To the contrary, in Skinner and Von Raab,
both of which involved random drug tests for government employees, the *21 Court carefully reviewed the
government's interest in testing and the employees' interest in privacy before
concluding that the challenged drug tests were constitutional as applied to
some, but not all, of the targeted employees.Therefore, to resolve the Fourth Amendment issue presented in this case,
it is useful to examine in detail the Skinner and Von Raab programs and the governmental
interests they were designed to serve.

Skinner concerned Federal Railroad Administration regulations that
authorized blood, breath, and urine tests of railroad employees who are
involved in major train wrecks or who violate specified safety rules.The FRA acted in response to studies that
showed a high incidence of drug and alcohol abuse within the railroad industry,
creating a serious safety hazard.According to one study, apparently unchallenged, 23 percent of operating
personnel were "problem drinkers";thirteen percent reported to work at least "a little drunk"
and five percent "very drunk" during the study year;and one in eight
drank at least once while on duty.489
U.S. at 607, n. 1. Another unchallenged study, conducted without the benefit of
regular, post‑accident testing, "identified 34 fatalities, 66
injuries and over $28 million in property damage (in 1983 dollars) that
resulted from the errors of alcohol[‑] and drug‑impaired employees
in 45 train accidents and train incidents during the period 1975 through
1983."Id. at 608.

Various labor groups sued to enjoin the regulations, arguing that
the Fourth Amendment prevented the government from testing employees without
individualized suspicion of drug use.The Court concluded, however, that the government's interest in random
testing sufficiently outweighed the employee's privacy expectations to justify
relaxing the traditional suspicion requirement.The Court described the government's interest in testing‑‑
preventing train wrecks‑‑as, variously, "compelling," id.
at 628 and 633, and "surpassing,"
*22 id. at 634.It also noted that
the targeted employees are engaged in "safety‑sensitive tasks,"
id. at 620, 629, and 633, and "discharge duties fraught with such risks of
injury to others that even a momentary lapse of attention can have disastrous
consequences."Id. at 628.These employees, like those "who have
routine access to dangerous nuclear power facilities," are capable of
causing "great human loss before any signs of impairment become noticeable
to supervisors or others."Id.

The Court went on to say that these proven and persuasive safety
concerns outweighed the privacy intrusions from the proposed blood and breath
tests which, the Court noted, reveal no facts in which the employee has a
substantial privacy interest, except the presence of alcohol or controlled
substances. Id. at 626.The urine
tests, however, presented a "more difficult question," and
"raise[d] concerns not implicated by blood or breath tests." Id. The
Court allowed that it "would not characterize these additional privacy
concerns as minimal in most contexts."Id. It noted, however, that the FRA regulations endeavor to reduce the
intrusiveness of the collection process. For one thing, the regulations do not
require a monitor to observe the employee while the urine sample is
produced.For another, they allow the
sample to be collected in a "medical environment, by personnel unrelated
to the railroad employer."Id. at
627‑28.The collection procedures
were. therefore, "not unlike similar procedures encountered often in the
context of a regular physical examination."Id. at 627.The Court
also noted that railroad employees have a diminished expectation of privacy
"by reason of their participation in an industry that is regulated
pervasively to ensure safety, a goal dependent, in substantial part, on the
health and fitness of covered employees."Id. at 627.These employees, the
Court noted, "have long been a principal focus of regulatory
concern."Id. at 628.

*23
Von Raab involved a drug‑testing program for customs agents who:(1) are directly involved in drug
interdiction, (2) carry firearms, or (3) handle classified material.489 U.S. at 660‑61.Citing Skinner, the Court reiterated that
drug‑testing is a search and that "a search must be supported, as a
general matter, by a warrant issued upon probable cause."Von Raab, 489 U.S. at 664.It also reiterated that, in exceptional
cases, where the government's interest in testing outweighs the individual's
privacy expectations, the government may proceed without the presumptively
necessary warrant and suspicion.Id. at
665‑66.

Applying this balancing test, the Court first concluded that the
government has a "compelling" interest in preventing drug use by
customs agents involved in drug interdiction.The Court noted that "[t]he Customs Service is our Nation's first
line of defense against one of the greatest problems affecting the health and
welfare of our population," id. at 668, and that "[t]he physical
safety of [Customs] employees may be threatened, and many may be tempted not
only by bribes from traffickers with whom they deal, but also by their own
access to vast sources of valuable contraband seized and controlled by the
Service," id. at 669.Therefore,
"the Government has a compelling interest in ensuring that front‑line
interdiction personnel are physically fit, and have unimpeachable integrity and
judgment."Id.

The Court also found that the government has a compelling interest
in preventing drug users from promotion to positions that require the employee
to carry firearms."Customs
employees who may use deadly force plainly 'discharge duties fraught with such
risks of injury to others that even a momentary lapse of attention can have
disastrous consequences.' "Id. at
670, quoting Skinner, 489 U.S. at 628.

Against these "compelling interests in safety and the
integrity of our borders," 489 U.S. at 672, the Von Raab *24 Court balanced the employees'
expectations of privacy.Those
expectations were "diminished," the Court said, because
"[u]nlike most private citizens or government employees in general,
employees involved in drug interdiction reasonably should expect effective
inquiry into their fitness and probity[,] and [m]uch the same is true of
employees who are required to carry firearms."Id. at 672.Moreover, the
Court said, the agency's drug‑testing procedures were carefully designed
to minimize the program's intrusiveness.First, the employee is given five‑days advance notice of the time
and place for collecting the urine sample, id. at 664, thus reducing to a
minimum any 'unsettling show of authority'... that may be associated with
unexpected intrusions on privacy."Id. at 672, n. 2. Second, the employee is not directly observed while
urinating and, indeed, is allowed to produce the urine sample in the privacy of
a bathroom stall.Id. at 661, 672, n.
2. Third, the employee is not required to disclose the use of licit drugs,
which may affect the test results, unless and until the specimen tests positive
for illicit drugs and, even then, the licit drug information is given to a
licensed physician, not to the Customs Service.Id. at 672, n. 2. Finally, the sample is collected by an
"independent contractor," id. at 661, not someone in the
Service."Taken together,"
the Court said, "these procedures significantly minimize the intrusiveness
of the Service's drug‑ screening program."Id. at 672, n. 2.

In light of these procedural safeguards and the
"extraordinary safety and national security hazards that would attend the
promotion of drug users to positions that require carrying firearms or the
interdiction of controlled substances," id. at 674, the Customs Service
was justified in testing applicants for such positions without the usual requirement
of individualized suspicion of wrongdoing.

The Court was unable to determine whether the Service was also
justified in testing applicants for positions that handle "*25 classified material" which,
under the agency's scheme include, among others, accountants, animal
caretakers, attorneys, baggage clerks, co‑op students, mail clerks, and
messengers.Id. at 678.The Court said these employees are subject
to urine testing if they have access to "truly sensitive information."Id. at 677.It remanded the case to the lower courts to determine whether the
designated positions do in fact allow access to such information.

D. The District's Drug‑Testing Program Is Unreasonable

The District contends that its drug‑testing program serves a
"special need" beyond the normal need for law enforcement:namely, to reduce the risk of drug‑related
athletic injuries.Assuming that is
true, [FN13] the District's special need does not necessarily mean that the
program is constitutional. Whether it is constitutional depends on whether the
District's interest in testing without suspicion outweighs the students'
privacy expectations. Skinner;Von
Raab. The District agrees that this is the proper test.Pet. Br. at 32.So does the Solicitor General.Br. for the United States at 12‑16 and n. 2. For reasons that
follow, the Court should conclude that, in this case, the students' privacy
interests outweigh the District's interest in suspicionless drug testing and,
therefore, that the testing program is unconstitutional. [FN14]

FN13. Although the District asserts in
its brief that test results will not be disclosed to law enforcement
authorities, the written description of the policy does not contain the same
assurance.(J.A. 7‑9).

FN14. The various amici supporting the
District have offered several off‑ record reports of drug problems
nationally and in other school districts. Even if this evidence is properly
subject to judicial notice, it is not relevant to the question at hand:whether Vernonia's drug‑testing program
which, as explained infra, is much more intrusive than other programs, is a
reasonable and hence constitutional response to its drug "problem,"
Although drugs are a national concern, the scope of the problem varies
substantially from school district to school district, as the amici's own
evidence proves.Accordingly, this
Court need not decide whether a drug‑
testing program of the type at issue here would be constitutional in a
different school district with a different drug record.The Court should thus decline the amici's
invitation to make a one‑size‑fits‑all rule that does not
account for differences in drug programs and drug problems.

*26
1. The District's Program Is A Substantial Invasion Of Privacy

The compelled production and testing of urine is an extreme
invasion of privacy, no less so for minors than adults, and no less so for
athletes than nonathletes.The
District's drug‑testing program heightens the intrusion by requiring
students to excrete on demand and under observation by school officials, not
independent monitors, and by requiring the students to disclose to the
officials their prescription medications.

(a)

Drug‑testing by urinalysis intrudes deeply on settled
expectations of privacy.The Court made
that clear in Skinner:

There are few activities in our society more personal or private than
the passing of urine.Most people
describe it in euphemisms if they talk about it at all.It is a function traditionally performed
without public observation; indeed, its performance in public is generally
prohibited by law as well as social custom.489 U.S. at 617, quoting National Treasury Employees Union v. Von
Raab,816 F.2d 170, 175 (5th Cir.
1987).See also Von Raab, 489 U.S. at
680 (Scalia, J., dissenting)("I think it obvious that [urine testing] is a
type of search particularly *27
destructive of privacy and offensive to personal dignity").

Oregon takes the same view.In Sterling v. Cupp, 44 607 P.2d 206, 208(Or.App. 1980), aff'd as modified, 625 P.2d 123 (Or. 1981), Judge
Gillette, now a Justice on the Oregon Supreme Court, wrote:"[t]he final bastion of privacy is to
be found in the area of human procreation and excretion, and the nudity which
may accompany them.If a person is
entitled to any shred of privacy, then it is to privacy as to these
matters." [FN15]

FN15. Drug testing by urinalysis is so
intrusive that at least sixteen states and five cities have enacted laws to
regulate it.See K. Zeese, DRUG TESTING
LEGAL MANUAL s 1.05[3] (rel. # 2, Nov. 1994).Three states require probable cause before an employer can compel an
employee to take the test.Id. at 1‑42.Four states and two cities require, among
other things, that the employer have some reason to suspect the employee is
using drugs or is drug‑impaired.Id. at 143 to ‑44.

As intrusive as drug‑testing is for adults, it is just as
intrusive, if not more so, for middle school students.Our culture instills early in children a
keen sense of privacy in excretory functions.By first grade, they expect, and are expected, to urinate in seclusion,
using segregated bathrooms, the same as adults.Adolescents are often extremely self‑conscious about their
developing bodies and its functions, especially when they reach puberty.

The Court has said that "[e]ven a limited search of the outer
clothing ... constitutes a severe, though brief intrusion upon cherished
personal security, and it surely must be an annoying, frightening, and perhaps
humiliating experience."Terry v.
Ohio, 392 U.S. at 24‑25.Drug
testing by urinalysis must be all that and more, for both adults and minors.

*28 (b)

The privacy intrusion does not end when the urine sample is
collected.Indeed, the most significant
privacy interest affected by urinalysis may be the information contained in the
urine. As noted in Skinner,
"chemical analysis of urine, like that of blood, can reveal a host of
private medical facts about [a person], including whether she is an epileptic,
pregnant, or diabetic."489 U.S.
at 617.Over time, technological
advances in urinalysis are sure to make the test even more revealing and,
hence, even more intrusive.

The District, however, does not limit itself to the information to
be gleaned from the urine sample.It
also requires students to disclose any prescription medications they may be
taking.(J.A. 8).By this simple expedient, the District
learns, even without urinalysis, information that is generally held in strict
confidence and that is completely unrelated to the one secret the District says
it is trying to discover:whether the
student is taking illicit drugs.For
example, if a student reports that he is taking AZT, the school thus will have
learned that he is infected with the AIDS virus.Similarly, if the student discloses that she is taking birth
control pills, school officials will then know that she is sexually active and
probably heterosexual.This is
information which the school has no right to know [FN16] and, moreover, is
information that serves no purpose in preventing drug‑related athletic
injuries.The drug‑screening
program for Customs agents, upheld in Von Raab, likewise requires the
disclosure of licit drug use, but only after the urine sample tests positive
for illicit drugs and, even then, the information *29 is disclosed only to a licensed physician, not to the Customs
Service. Von Raab, 489 U.S. at 672, n. 2. [FN17]

FN16. It is unlawful to require a
student to submit to a psychiatric or physiological examination for the purpose
of determining, among other things, the student's "sex behavior and attitudes."20 U.S.C. s
123h(b)(3).

FN17. The drug‑testing program
for railroad workers, upheld in Skinner, requires employees to disclose, at the
time they produce blood and urine samples, "whether they have taken any
medications during the preceding 30 days."489 U.S. at 626, n. 7. It is not clear from the opinion whether
they are required to disclose which medications they have taken.In any event, this information is disclosed
to the medical personal retained to conduct the test, who then forward it to
the FRA's laboratories.The information
is apparently not shared with the worker's employer.

(c)

The District's test procedures are much more intrusive than the
procedures upheld in Skinner and Von Raab. In the first place, the District's
program requires students to produce urine on demand and under
observation.Each week the school draws
the names of the students to be tested.Those students are taken from class that same day, escorted to the
locker room, handed a specimen bottle, and instructed to fill it while the
monitor waits.A student who cannot
urinate immediately is allowed to return to class, but must come back later in
the day to try again under the same stressful conditions as before. (J.A. 32).
[FN18]By comparison, the Custom Service's
drug test, at issue in Von Raab, provide for five days advance notice of the
time and place for collecting the urine sample.This provision was important, the Court said, in reducing the
intrusiveness of the Service's program.489 U.S. at 672, n. 2.

FN18. In Schaill v. Tippecanoe County
School Corp., 679 F.Supp. 833 (N.D. Ind. 1988), aff'd, 864 F.2d 1309 (7th Cir.
1988), which involved a drug‑testing program for high school athletes and
cheerleaders, there was evidence that some students suffer such stress while
standing at the urinal that they are unable to void their bladder for up to two
or three hours. 679 F.Supp. at 843.

Male students in Vernonia suffer the added indignity of *30 being observed while they
urinate.The test monitor accompanies
the student to the urinal and stands a short distance behind, watching and
listening at least some of the time.To
be observed while urinating is, of course, an extreme invasion of privacy,
which is why the Court found it significant, in both Skinner and Von Raab, that
the drug‑testing protocol did not require the employee to be observed
while producing the urine sample.Skinner, 489 U.S. at 626;Von
Raab, 489 U.S. at 672 n. 2. Indeed, the Von Raab test allowed the employee to
produce the sample in the privacy of a bathroom stall. [FN19]In our society, it is degrading to be
observed while urinating, even from behind. [FN20]

FN19. In Schaill v. Tippecanoe County
School Corp, which upheld a drug‑ testing program for high school
athletes, the court placed great importance on the fact that the program
allowed only aural, not visual, monitoring of the urine sample being
produced.864 F.2d at 1318.

FN20. In George Orwell's famous novel,
1984, he describes a "negative utopia" in which the citizenry have lost
all privacy.The government‑‑"Big
Brother"‑‑watches everyone through "telescreens"
mounted on the walls.The screens are
everywhere, including the water closet:"There was no place where you could be more certain that the
telescreens were watched continuously."Eric Blair a.k.a. George Orwell, 1984 89 (New American Library 1981).

It is even more degrading when the observer is someone in a
position of authority to the person forced to urinate, which is the case in
Vernonia.The monitors there are teachers,
administrators, and coaches.By
comparison, the Custom Service authorizes an "independent contractor"
to collect the urine sample.Von Raab,
489 U.S. at 661.The FRA requires the
sample to be collected in an "independent medical facility," Skinner,
489 U.S. at 609, by personnel "unrelated to the railroad
employer."Id. at 626‑27.Even the Institute for a Drug‑Free
Workplace, one of the Nation's foremost proponents of drug testing and an
amicus curiae in support of the District, agrees that the collection of urine *31 samples should be "conducted
by independent trained professionals at an independent site" in order to
limit the intrusion on privacy.Br. of
Inst. for a Drug‑Free Workplace at 12.

(d)

The District's drug‑testing program is all the more
intrusive because it regulates conduct that the District has no right to
regulate and, moreover, has expressed no interest in regulating‑‑namely,
off‑campus, after‑hours drug use that does not result in drug‑impairment
during class or a District‑sponsored athletic event.Drug use is regrettable, of course, no
matter where or when it occurs, but this conduct does not threaten school
discipline or athletic safety, the District's stated concerns, and thus does not
justify its program of round‑the‑clock surveillance.The District has little or no interest in
student conduct outside of school, where parents and other authorities are in
charge, if it does not affect student conduct inside.Compare Von Raab, 489 U.S. at 674 (because of its "almost
unique mission," the Customs Service has a"compelling interest in ensuring that [agents covered by its
drug test] do not use drugs even off duty").

(e)

The District argues that its drug‑testing program is not a
substantial invasion of privacy because:(1) students have a substantially diminished expectation of privacy in
their urine;(2) athletes in particular
have far fewer privacy interests;(3)
the program is nonpunitive and confidential;(4) the collection procedures are minimally intrusive;and (5) participation in school sports is
voluntary.None of these arguments,
addressed in turn below, withstands scrutiny.

(1) The District argues that minors surrender their privacy
expectations when they pass through the schoolhouse gate, because the
"process of educating young people is inherently invasive."Pet.Br. at 39."A teacher," the District *32 says, "simply cannot do his or her job without constantly
and pervasively intruding into privacy interests [of students]."Id. at 40. Therefore, the District argues,
students must have a substantially diminished expectation of privacy.This Court rejected a similar contention in
T.L.O. In that case, the State of New Jersey argued that, "because of the
pervasive supervision to which children in the schools are necessarily subject,
a child has virtually no legitimate expectation of privacy in articles of
personal property 'unnecessarily' carried into school."469 U.S. at 338.This argument, the Court said, was based in part on the
"seriously flawed" premise that student privacy is fundamentally
incompatible with maintaining a sound educational environment.Id. The Court also said:"Although we may take notice of the
difficulty of maintaining discipline in the public schools today, the situation
is not so dire that students in the schools may claim no legitimate
expectations of privacy."Id. The
Court went on to hold that, because students have legitimate expectations of
privacy, school officials cannot search students without some suspicion of
wrongdoing.Id. at 341‑42.

To be sure, students in school have less expectation of privacy
than adults in other settings.That, of
course, was part of the reason that T.L.O. authorized school officials to
search students with less suspicion than probable cause. [FN21] But even if a student's privacy expectations
are not on par with an adult's, they are still substantial."A search of a child's person ... no
less than a similar search carried out on an adult, is undoubtedly a severe
violation of subjective *33 expectations
of privacy."Id. at 338 (emphasis
added).Thus, the District greatly
overstates its case when it suggests that school‑age minors have
substantially diminished expectations of privacy.

FN21. Oregon has not followed T.L.O. in
construing the state constitution.In
State ex rel.Juvenile Dep't v. DuBois,
821 P.2d 1124, 1126‑27 (Or. App. 1991), the court held that Article I,
section 9, unlike the Fourth Amendment, does not permit school officials to
search an individual student without a warrant or probable cause, unless
"exigent circumstances" or some other historical exception applies.

It also overgeneralizes.Students may have a diminished expectation of privacy in some things,
but not others.For example, the District
has put its students on notice that their lockers belong to the school and thus
are subject to routine inspections.(Pl. Ex. 2 at 21). [FN22]But
nothing in the students' school experience gives them reason to expect that
their urine is open to inspection as well.To the contrary, they have a real and legitimate expectation that this
most private of human activities is off limits to others even while they are in
school.They are not routinely observed
while urinating there, and school officials do not ordinarily have access to their
urine for analysis.

FN22. The handbook also provides that a
"[s]earch of the student's person
or possessions will be limited to the situation where there is reason to
believe that a student is hiding evidence of an illegal act or a school
violation."(Pl. Ex. 2 at
14).This provision, if nothing else,
gives students an expectation of freedom from suspicionless searches while on
school grounds.

Even if students' privacy expectations are diminished inside the
schoolhouse, they remain intact outside.The District does not contend otherwise. Nevertheless, its drug‑testing
program intrudes on students' activities off‑ campus and after school
hours.As noted above, the test does
not discriminate between drug‑impairment in class or during school sports
and drug‑impairment at other times or places, including the student's
home.Drug use anytime anywhere will
produce a positive test result and trigger the prescribed penalties. Thus, the
drug test reaches beyond the time (the schoolday) and the place (the schoolhouse
and yard) where *34 the District now
argues that students have a diminished expectation of privacy. [FN23]

FN23. The time it takes for drugs to
become undetectable in urine varies with the individual, but can last as long
as 22 days.Von Raab, 489 U.S. at
676.Since the District begins testing
at the start of each school
quarter, it is possible for a student to test positive based on drug use during
vacation.

(2) The District argues that athletes in particular have a reduced
expectation of privacy in either their urine or the act of urinating, because,
the District says, school sports are so highly regulated.In fact, the District's athletic regulations
are trifling.To play sports students
must have a physical examination, keep up their grades, and obtain health
insurance or sign an insurance waiver.(R. 61‑62;Pl. Ex. 5 at
63). [FN24]That's it.These minimally intrusive rules do not
compare to the pervasive federal and state regulations governing railroad
employees, which led the Skinner Court to conclude that they lose some
expectation of privacy in their urine when they report to work.489 U.S. at 627‑28.As the court of appeals correctly noted
below, the District's rules "are not the sort of extensive government
regulation that has been found to diminish the expectation of privacy of
workers in high risk industries or high security areas of the government."
23 F.3d at 1525 (Pet. App. 53a‑54a)(citations omitted)."High school athletes," the court
continued, "do not go through extensive background checks in order to join
their teams."Id. The District is
unable to point to anything in its athletic rules that would prepare students
for the District's demand to excrete under supervision so the *35 fluid can be examined for the
secrets within.

FN24. Athletes are also required to
observe training rules set by the coach, which the District suggests are
rigorous and intrusive.But there is no
evidence that the coaches have in fact set any training rules, let alone
rigorous or intrusive ones.Even while
alluding to these unspecified rules, the District does not suggest that any of
them concern athletes' excretory functions.

Continuing its athletes‑have‑fewer‑rights
argument, the District states that the mandatory, pre‑season physical examination
"includes urinalysis."Pet.
Br. at 41.The word
"includes" should not mislead the Court, as it did the Solicitor
General, see Br. of United States at 24, to assume that urinalysis is a
required part of the examination.It is
not.James testified that he gave a
urine sample during his exam (J.A. 17), but no one testified that he had to or
that anyone else did.The district
superintendent testified that athletes must have a physical exam, but he did not
know what the exam entailed.(R. 62‑63).
In any event, James produced his urine sample unobserved in the privacy of a
bathroom stall and gave it to his physician, with whom he has a confidential
relationship.(J.A. 17‑18).Whatever tests were conducted on the
specimen‑‑ and nothing in this record identifies them‑‑the
results could not be disclosed, to school officials or anyone else, without the
consent of James or his parents.Far
from proving that James has no expectation of privacy in his urine, the
circumstances of his pre‑season examination prove that he does.The District notes that drug testing for
steroids and other performance‑enhancing drugs has become more common in
collegiate, Olympic, and professional athletics, where the Fourth Amendment
generally does not apply.But cf. University
of Colorado v. Derdyn, 863 P.2d 929 (Colo. 1993), cert. denied, ‑‑‑
U.S. ‑‑‑‑, (1994) (upholding a Fourth Amendment
challenge to a drug‑ testing program for university athletes).This proves nothing except that, if James
ever succeeds to that high level of athletic competition, he may expect, then,
to give up some privacy;it does not
prove that he has given it up now.

(3) The District argues that its drug‑testing program is
"minimally intrusive" because it is "non‑punitive"
and "confidential."In fact
it is neither. Students who flunk the test are forced to quit sports or to
submit to drug counseling and *36
weekly urinalysis.Those who flunk a
second or third time are not even given that Hobson's choice‑‑instead,
they are automatically kicked out of the sports program for two or more
seasons.Most students would consider
that punishment.Indeed, suspension is
the prescribed punishment for students who demonstrate poor sportsmanship,
misuse the school's athletic equipment, or otherwise breach the its rules for
athletes.(Pl. Ex. 5 at 63). What is
punishment in the one context is also punishment in the other. [FN25]

FN25. The fact that the District calls
each positive test an "offense" and that the length of the suspension
increases with the number of offensives, (J.A. 9), further undermines the
District's contention that the drug‑ testing program is nonpunitive.

As the District itself concedes, "community life [in
Vernonia] centers around the schools, with interscholastic athletics playing a
dominant role."Pet. Br. at 3.
Therefore, to be denied the right to participate in school sports is, in
effect, to be excluded in part from the community.That cannot be viewed as anything but punishment.What is more, it is public punishment.It is true that the District does not
publish the test results.But in a
small town such as Vernonia, where community life revolves around the schools
and school sports, everyone will know when a student tests positive, because it
will be obvious that the student, once on the team, no longer is.The "secret" will inevitably get
out, starting with the student's teammates and spreading from there.

The fact that the District does not report test results to the
police for law enforcement purposes‑‑if it is a fact, see note 13,
supra‑‑does not support its contention that the privacy
expectations of athletes should be discounted in the weighing of individual and
governmental interests.To do so would
overinflate the government's side of the balance, *37 as the Colorado Supreme Court explained while striking down a
random drug‑testing program for university athletes:

It is true that an intrusion by the government outside the context of
criminal law enforcement is generally less of an intrusion than one for the
purposes of law enforcement.However,
as a matter of law, we already take this fact into account when we analyze this
case according to the standards of Skinner and Von Raab, rather than according
to the standards of the typical cases in the area of criminal procedure....In other words, were we to attribute less
weight to the students' privacy interests because this is not a criminal case,
and also start with the premise that Skinner and Von Raab control, we would be,
in effect, giving double weight in our analysis to the fact that we are not
dealing with an issue in criminal procedure

University of Colorado v. Derdyn, 863 P.2d at 942.

(4) The District contends that its drug‑testing program is
minimally intrusive because the conditions under which athletes are tested are
essentially the same as using a public restroom or locker room.Pet. Br. at 42.But, of course, there are substantial differences.A person urinating in a public restroom is
not forced to do so, is not subject to visual and aural monitoring and, most
importantly, does not surrender the urine for analysis by government
officials.In public facilities,
individuals blend into the crowd;they
are not singled out for observation.Indeed, it is considered taboo even to appear to be observing others in
a public restroom.People avert their
eyes from one another;they attend to
their own needs and then leave.For
most schoolchildren, there is a world of difference between using a public
facility *38 and being ordered to
fill a specimen bottle while a teacher watches and listens. [FN26]

FN26. Adults, too, use public
restrooms, but the District does not contend that adults have thereby lost all
expectation of privacy in their urine or the process of excreting it.

(5) Finally, the District contends that its drug‑testing
program is minimally intrusive because it applies only to students who
"voluntarily" engage in school sports and thus can be avoided by
students who object to it.Pet. Br. at
42‑43.To be sure, the program is
less intrusive than it would be if it applied to all students and thus was
unavoidable.But even as applied to
athletes only, the intrusion is still extreme, considering what students must
give up to escape testing:participation in school sports.That is a very high price to pay for asserting a constitutional
right.As the District superintendent
testified, playing school sports is an "important part of the school
experience."(Pl. Ex. 5 at 7;see also J.A. 20).The court below made the same observation:"Participation in athletics is
obviously highly desirable and encouraged, as this record shows.The fact is that parents wish to have their
children obtain the physical and mental benefits of organized sports.That, too, is part of the educational
process;part of what tax dollars pay
for."23 F.3d at 1525 (Pet. App.
55a).

The District cites United States v. Martinez‑Fuerte, 428
U.S. 543, for the proposition that a search is unintrusive as a matter of law
if it can be evaded, somehow, anyhow.But that is not, in fact, the holding of that case. Martinez‑Fuerte
allowed immigration officials to briefly detain motorists at fixed checkpoints
near the border to inquire whether they were in this country legally.The Court described this as minimally
intrusive compared to a full‑ scale search of the person.Id. at 558.It also noted that motorists who object to even that much intrusion can
learn in advance where the *39
checkpoints are and take other roads to avoid them.Id. at 559. This was not, of course, the decisive factor in the
Court's ruling.Nevertheless, the
District makes much of the fact that its students, like the motorists in
Martinez‑Fuerte, can avoid the drug test by not going out for school
sports.What the District overlooks, of
course, is that students in Vernonia, unlike the motorists in Martinez‑Fuerte,
cannot avoid the test and still get where they were going.There are no "other roads" for
students who want to participate in organized athletics.The District's sports program is, so to
speak, the only game in town, a point the District concedes at page 3 of its
brief."Because of its size and
location, the town has few recreational opportunities or organized
entertainment programs for elementary and high school students."

In sum, the fact that the District's drug test can be avoided‑‑because
it applies only to students who play sports and playing sports is
"voluntary"‑‑ does not significantly diminish the privacy
intrusion. [FN27]

FN27. Just as students do not have to
play school sports, people who work for the Customs Service do not have to work
there;they can seek employment
elsewhere and, therefore, their employment is "voluntary," too, under
the District's analysis.Even so,
Customs agents do not surrender their privacy interests when they hire on.If they did, Von Raab would have been a much easier case to
decide.

2. The District's Interest In Drug Testing Is Not Compelling

The privacy interests affected by the District's drug‑testing
program are significant, as explained in the preceding section.By comparison, the District's interest in
maintaining the program is slight.

*40 (a)

The District says that its interest in drug testing, to be
balanced against the students' interest in privacy, is preserving the safety of
its athletes. But that, of course, is incorrect.It is not athletic safety that should be weighed in the balance,
for the District is free to pursue that goal by traditional methods, including
education and counseling, and perhaps even drug testing on suspicion of drug
use.Rather, the interest to be entered
on the District's side of the balance is the "cost" of pursuing that
goal without suspicionless drug testing.

The surest way to measure this cost is to compare the number of
drug‑related athletic injuries before the drug‑testing program and
the number of such injuries after, since the test was in effect for several
years before the trial of this case.A
substantial drop‑off after the test might indicate that it is an
efficient means to its stated end and thus would be costly to discontinue. The
record, however, does not indicate a drop‑off.Although there is no evidence of a drug‑related athletic
injury after testing began, neither is there evidence of any such injuries
before it began.The District suspects
that one wrestler was injured while on drugs, but that suspicion was never
confirmed, as noted earlier.Measured
against its goal of reducing injuries from drugs, the District's drug‑testing
program has little apparent value, and so the District's interest in continuing
the program is slight.

(b)

Even if the drug‑testing program were an efficient means to
its stated end‑‑ safer sports‑‑the end itself
"suffer[s] by comparison" to the ends of the drug‑ testing
programs upheld in Skinner and Von Raab, as the court below correctly
noted.23 F.3d at 1526 (Pet. App.
56a).The goal of the Skinner program,
which this Court found barely sufficient to justify urine testing, as opposed
to less intrusive *41 blood and
breath testing, 489 U.S. at 625‑27, was to prevent train wrecks and their
attendant loss of life and property damage. In Von Raab, the goals were
preserving the integrity of the Nation's borders and preventing the misuse of
deadly weapons.Accordingly, the Court
could say in Skinner and Von Raab that the employees covered by the drug tests
there hold "safety‑" or "security‑sensitive"
positions and "discharge duties fraught with such risks of injuries to
others that even a momentary lapse of attention can have disastrous
consequences."Skinner, 489 U.S.
at 628;quoted with approval in Von
Raab, 489 U.S. at 670.These precedents
make clear that our precious Fourth Amendment freedoms do not give way except
to the most compelling safety and security concerns.

That point is bolstered by Von Raab's conclusion that drug testing
may be unconstitutional for Custom Service employees who are not engaged in
front‑line drug interdiction and do not carry firearms.No doubt some of the employees in this group‑‑which
includes messengers‑‑operate motor vehicles, either on‑ or
off‑duty, which is unquestionably a more dangerous activity than middle‑
and high‑school athletics.Even
so, these employees could not be compelled to submit to a urine test under the
Service's screening program without some proof that they were likely to gain
access to "sensitive information" and thus pose a threat to national
security.Id. at 677‑78.

The District's concern for the safety of student athletes, albeit
well‑ intentioned, simply does not rise to the level of the safety
concerns that were found sufficiently compelling in Skinner and Von Raab to
justify so serious an invasion of privacy as the compelled production and
testing of urine.There certainly is no
risk of harm on the order of a train wreck or gun battle if a student athlete
competes while drug‑impaired.Indeed, the District's experience shows that there is little risk of any
injury, let alone a serious one;as *42 noted earlier, the District cannot
prove a single drug‑related athletic injury in the history of its sports
program. Even if there were some drug‑related
injuries that escaped detection, they could not have been very serious.The District's athletic director testified
that the typical injury in the girl's sports program (which includes
volleyball, cross country, basketball, track, and golf) was a "muscle‑type"
injury, such as a "pulled muscle" from "improper warmup" or
a "torn ligament or cartilage."(J.A. 43‑ 44).The boy's
sports program includes the same sports (excepting volleyball) plus football
and wrestling.The District offered no
evidence that the typical injury for boys is more serious than the typical
injury for girls, so the Court should assume that it is not more serious.No injury should ever be taken lightly, of
course, but the government's interest in preventing pulled muscles and torn
ligaments is not equal to its interest in preventing loss of life or breaches
of national security.

The District argues, correctly, that just because there have not
been any serious, drug‑related injuries does not mean that there could
not be any.The issue, however, is not
whether such an injury could happen, but the likelihood that it will without
drug testing.Nearly everything is
possible, but not everything is probable, and some things are very improbable,
if experience is any guide.The
District's sports program has no history of drug‑related injuries, even
before its drug test.On this record,
therefore, the probability of future injuries if testing stops must be slight,
if calculable at all.Fourth Amendment rights
should not be lost to mere speculation about potential harm. [FN28]

FN28. The Skinner Court demanded more
than speculation.As noted above, the
drug‑testing program at issue there was supported by unchallenged studies
showing both a high incidence of drug use among railroad workers‑‑
one of eight drank on the job and eighteen percent reported for work either
"very drunk" or at least "a little drunk," 489 U.S. at 607
n. 1 ‑‑as well as a clear connection to railroad safety‑‑drug‑impaired
workers caused at least 34 fatalities and $28 million in property damage in
just eight years.Id. at 608.

*43
Recognizing the holes in the record, the District notes that illicit drugs can
be harmful to minors aside from their potential for causing sports injuries.Drugs, the District says, can interfere with
memory, sensation, and perception, and can "lead people to take risks, to
be careless and impulsive and to disregard instructions," Pet. Br. at 30
and 31, n. 2, depending, of course, on the type of drug and when and how it is
used.But this, of course, is true for
both young and old drug users and for both athletes and nonathletes.If that potential, generalized harm were
sufficient to justify random drug testing, then everyone would be subject to
urine testing regardless of age or occupation, and Skinner and Von Raab would
just be so much spilt ink.Von Raab
makes clear, however, that not everyone is subject to testing: customs agents,
for example, are immune if they are not directly involved in drug interdiction,
do not carry firearms, and do not have access to sensitive information.That holding cannot be reconciled with the
District's argument that the physiological and psychological effects of illicit
drugs are sufficient alone to permit drug testing for any potential user.

(c)

The District's interest in its drug testing program is diminished
substantially by its failure to prove a high incidence of drug use within its
sports program.Some groups targeted
for drug testing are engaged in such ultra‑hazardous activities that even
a single, drug‑impaired individual can cause catastrophe‑‑airline
pilots, railroad engineers, and nuclear reactor operators come quickly to
mind.Accordingly, the government may
be justified in testing these groups *44
even without evidence that many, if any, group members actually use drugs.The Court made this precise point in Von
Raab in response to the contention that the Custom Service drug test was
unjustified without proof of frequent drug use by customs agents:"The mere circumstance that all but a
few of the employees tested are entirely innocent of wrongdoing does not impugn
the program's validity," given the "substantial" harm the
program seeks to guard against.489
U.S. at 674‑75.But for groups
engaged in less hazardous activities, where the potential harm from a drug‑impaired
individual is relatively minor‑‑pulled muscles and torn ligaments,
not plane crashes, train wrecks, or reactor meltdowns‑‑the lack of
evidence of frequent drug use within the group substantially reduces the
government's interest in subjecting all group members to the indignity of drug
testing.

(d)

The District's interest in dragnet drug testing, slight to begin
with, is diminished further by the limited utility of its testing program.The test does not cure drug use, nor does it
prevent athletes from competing while on drugs.The only way to prevent that is to test each student in advance
of each athletic event, as the District's own expert agreed.(Def. Ex. 106 at 81). See also Brooks v. East
Chambers Consol.Indep.School Dist., 730 F.Supp. 759, 765 (S.D.Tex.
1989), aff'd without published op., 930 F.2d 915 (5th Cir. 1991).Drug testing is simply a means of detecting
those who use drugs. As such, it offers some deterrence to drug use, including
use in athletic competition.But there
are already several substantial deterrents.First and foremost is the usual fear of getting caught, which is
possible, of course, without random drug testing.Another existing deterrent is that students who volunteer to play
sports want to play well and thus will avoid using drugs in competition for
fear of impairing their performance.They might take drugs outside of competition but, in that event, there
is no risk of *45 a drug‑
related athletic injury which, again, is the District's announced concern.
Finally, there is concern for personal safety.As the District itself observes, playing sports on drugs can increase
the risk of injury.That fact is surely
not lost on most athletes and, therefore, most will avoid drugs in competition
for fear of getting hurt."It is,
of course, the fear of the accident, not the fear of a postaccident revelation,
that deters."Skinner, 489 U.S. at
651 (Marshall, J., dissenting).All
things considered, the District's drug‑testing program provides little
added deterrence to the use of illicit drugs in school sports.

What little deterrence it does add is compromised substantially by
the limitations of the District's drug test.It covers only a few drugs‑‑ marijuana, amphetamines,
cocaine, and occasionally LSD‑‑conspicuously omitting alcohol, the
one drug that everyone agrees is most readily available to and most often
abused by both minors and adults, as well as steroids, the drug that is most
commonly used by athletes seeking to enhance their performance.Thus, if there are athletes who want to
compete under the influence of drugs‑‑and the District has not
proved there are any‑‑the drug test will not deter them;they will simply switch to alcohol or drugs
not covered by the test. [FN29]

FN29. Yet another limitation of the
test is that it merely indicates whether a student has taken one of the
targeted drugs at some time in the recent past.It does not indicate how much the student took or when, or
whether it was enough to cause any impairment, let alone substantial
impairment, at any given point in time.The test is not like a blood alcohol test, which determines not only
whether a person has alcohol in his blood, but also how much alcohol is there‑‑whether,
in particular, there is enough to put the person over the "legal
limit," at which point substantial impairment can be presumed or proven.

(e)

Even if the District's drug‑testing program were an
efficient means to a compelling end, the availability of a less *46 intrusive means to the same end‑‑namely,
drug testing on suspicion of drug use‑‑substantially diminishes the
District's interest in the program.The
District argues that suspicion‑ based testing, which it has not tried
(J.A. 35), is unworkable because, it says, school officials cannot formulate,
through observation alone, a reasonable suspicion that a student is drug‑impaired.But the whole premise of its drug‑testing
program is that they can do that.As
explained earlier, the District adopted the program after it concluded that it
had a drug problem. The basis for that conclusion was an apparent rise in the
number of unruly students.These
students, or most of them, the District says, were unruly because of drugs.Obviously, then, the District can tell
without testing who is on drugs, or at least it thinks it can:It is the unruly students.Either the District is wrong‑‑not
all unruly students are on drugs‑‑in which case the foundation for
its drug‑testing program collapses:there is no drug problem. Or it's right‑‑all unruly students
areon drugs‑‑in which case the foundation still collapses because,
in that case, the District would not need to test anyone to determine who is on
drugs, it would only need to observe who is misbehaving.At most, the District would have an interest
in testing the students who misbehave and thus give reason to be suspected of
using drugs. But it would have no rational interest in testing the students,
like James, who are well‑behaved.

The District can't have it both ways.It can't argue, on the one hand, that"[t]eachers and coaches cannot reliably detect drug
intoxication by observation," Pet. Br. at 37, and then argue on the other
hand that, based on observation alone, school officials know, or at least
reasonably suspect, that a large part of the student body uses illicit drugs
and, moreover, that particular students use them‑‑namely, the Big
Elks, the Drug Cartellians, and "leading student athletes."Pet. Br. at 6. The court of appeals was
unimpressed *47 with the District's
we‑can't‑tell‑without‑testing argument, noting that
"the testimony showed" that "teachers and administrators could
detect behavior and physical problems that rather clearly appeared to be drug
related."23 F.3d at 1522 (Pet.
App. 35a)(emphasis added).

In Delaware v. Prouse, 440 U.S. 625, the Court held that the
police could not stop motorists without suspicion of wrongdoing to check for
unlicensed drivers and unsafe vehicles.The Court noted that these "roving spot checks" serve an
important end‑‑enforcing the motor vehicle code‑‑but
concluded nevertheless that they are not "a sufficiently productive
mechanism to justify the intrusion upon Fourth Amendment interests such stops
entail," "[g]iven the alternative mechanisms available."Id. at 659.The "foremost" of the alternatives, the Court said, "is
acting upon observed violations."Id. Likewise, the "foremost" method for enforcing student
conduct codes is acting on observed violations.The availability of that alternative enforcement mechanism
diminishes the District's interest in random, suspicionless drug testing.
[FN30]

FN30. In Michigan Dept of State Police
v. Sitz, 496 U.S. 444 (1990), which upheld sobriety roadblocks, the Court
explained that Delaware v. Prouse was not intended to approve "searching
examination of the 'effectiveness' " of particular searches and
seizures.Sitz, 496 U.S. at 454.Nevertheless, the Court went on to examine
the results of the roadblock and concluded that it was at least as effective as
the border checkpoint approved in United States v. Martinez‑Fuerte, 428
U.S. 543. Sitz, 496 U.S. at 455.Furthermore, in its summation, the Sitz Court said that "the extent
to which [sobriety roadblocks] can reasonably be said to advance [the State's
interest in preventing drunk driving]" was part of the basis for its
decision to approve such roadblocks.Id. Read together, Prouse and Sitz hold that the effectiveness of a
search in achieving its stated goal is not dispositive, but is at least a
factor to consider, in determining whether the search is reasonable under the
Fourth Amendment. The District agrees.See Pet. Br. at 15‑16 (citing "effectiveness" as one
factor to balance in evaluating a search).

*48 (f)

The District's brief refers occasionally to a second potential
justification for its drug‑testing program:maintaining order in the classroom.But that goal, on this record, is as defective constitutionally
as the stated goal of athletic safety.The government has no less interest in maintaining order and productivity
in its workplace than in its schools, especially for important agencies like
the Customs Service.And yet that
interest alone proved insufficient to subject all Customs employees to drug
testing.Von Raab, 489 U.S. at 677‑78.
[FN31]

FN31. The District claims that athletes
are "role models" and "leaders" for the rest of the student
body.Pet. Br. at 30.But this is another overstatement.Two‑thirds of its high school students
and three‑fourths of its junior high students are athletes.Id. at 3. Not everyone can be a role
model.And there can't be more students
leading than being led.

In any event, if the District's hidden agenda is to reduce
disruptions in the classroom, it is difficult to see the logic of its drug‑testing
program. Teachers don't need drug tests to find out which students are being
disruptive.If disruptive behavior is
not obvious, then it's not disruptive behavior.Therefore, to deter disruptions, school officials can and should
punish the perpetrators.It makes
little sense, however, to respond to students who disrupt class with a drug
test for only those students who go out for sports.Not all disruptive students play sports, so the test won't deter
them from further misbehavior.And not
all athletes who misbehave in class take drugs, so the test won't deter them
either.Finally, not all athletes who
take drugs misbehave in class, so subjecting them to the test won't reduce
classroom disruptions.In short, the
District's drug‑testing program is not rationally related to its after‑the‑fact
statement of purpose.As the court of
appeals observed, "If the goal was to reduce drug use in the student body
in general [as opposed *49 to
avoiding athletic injuries], testing athletes seems to be a considerably more
roundabout way of reaching that goal."23 F.3d at 1522 (Pet. App. 35a).

3. The Students' Interest In Privacy Outweighs The District's
Interest In Testing

The District's drug‑testing program is a extreme invasion of
privacy.It compels students to engage
in one of the most private human activities‑‑the excretion of urine‑‑on
demand and under the watchful eyes of an adult authority figure, and then to
surrender the urine to the government for chemical analysis.It also forces students to disclose their
prescription medications, thus enabling school officials to discover, even
without testing, the students' most private health secrets.

Balanced against these substantial privacy intrusions is the
District's interest in reducing the risk of drug‑related athletic injuries.On this record, that risk is slight, given
that the District experienced no drug‑ related injuries in its sports
program before the drug test began. Furthermore, the typical athletic injury‑‑often
a pulled muscle, sometimes a torn ligament‑‑is a relatively minor
harm, compared to the "disastrous consequences" that the drug test in
Skinner was designed to prevent, 489 U.S. at 1419, or the "extraordinary
safety and national security hazards" that the Von Raab test was intended
to avert.489 U.S. at 674.This combination of slight risk and minor
harm produces a less‑than‑compelling argument for the District's
drug‑testing program, which is weakened further by the limitations of the
test and the availability of less intrusive alternatives to the same goal.Accordingly, the Court should hold that the
District's program violates the Fourth Amendment.To hold otherwise would mean that the Amendment has become frail
protection indeed against government invasions of privacy.

*50 CONCLUSION

The judgment below should be affirmed.

JOINT APPENDIX

*ia TABLE OF CONTENTS

Relevant Docket Entries in Wayne and
Judy Acton, guardians ad litem for James Acton vs. Vernonia School District
47J, United States District Court for the District of Oregon, Case No. 91‑1154‑MA
and all appellate proceedings therein ... 1

Order of the United States District
Court for the District of Oregon, denying Plaintiffs' claims for injunctive and
declaratory relief (May 7, 1992) ... 14

Judgment of the United States District
Court for the District of Oregon, dismissing action (May 7, 1992) ... 15

Partial transcript of Direct‑,
Cross‑ and Redirect‑Examination of James Acton ... 16

Partial transcript of Direct‑ and
Cross‑Examination of Ralph Aultman, Principal of Washington Grade School
and Former Assistant Superintendent of Vernonia School District and Former
Principal of Vernonia High School ... 19

Partial transcript of Cross‑Examination
of Ellis Mason, Superintendent of Vernonia School District ... 38

Partial transcript of Direct‑ and
Cross‑Examination of Marcia King, Vernonia School District Teacher and
Athletic Director ... 39

Partial transcript of Direct‑ and
Cross‑Examination of Kathleen Sevig, Vernonia High School Teacher ... 45

Partial transcript of Direct‑ and
Cross‑Examination of Ronald Svenson, Vernonia High School Teacher,
Wrestling Coach and Former Vernonia High School Football Coach ... 53

The following may be found in the
Petition for Writ of Certiorari where indicated and are omitted from the Joint
Appendix pursuant to Supreme Court Rule 26.1:

Opinion of the United States Court of
Appeals for the Ninth Circuit issued May 5, 1994 ... Pet. App. A at 1a

Opinion of the United States District
for the District of Oregon issued May 7, 1992 ... Pet. App. B at 76a

Order of the United States District
Court of Appeals for the Ninth Circuit denying Defendant's Petition for
Rehearing and Rejecting Suggestion for Rehearing En Banc filed July 8, 1994 ...
Pet. App. C at 143a

11/04/91 Complaint for Declaratory and Injunctive Relief and Plaintiffs'

Motion for Appointment of Guardians Ad Litem filed.

11/18/91 United States District Court for the District of Oregon grants

Plaintiffs' Motion for Appointment of Guardians Ad Litem.

11/22/91 Defendant's Answer filed.

01/03/92 Plaintiffs file Motion for Judgment on the Pleadings.

03/02/92 United States District Court for the District of Oregon denies

Plaintiffs' Motion for Judgment on the Pleadings.

04/28/92 Pretrial conference held and United States District Court for the

District of Oregon issues Order receiving Plaintiffs' Trial

Exhibits 1 through 5 and Defendant's Trial Exhibits 101, 103, 105

through 107 and 109, and rejecting Defendant's Trial Exhibits 102

and 108.

04/29/92 Trial commences in the United States District Court for the District

of Oregon before the Honorable Judge Malcom F. Marsh.

05/07/92 United States District Court for the District of Oregon issues

Opinion, enters Order denying Plaintiffs' claims for declaratory

and injunctive relief, and enters Judgment dismissing action.

06/02/92 Plaintiffs file Notice of Appeal to the United States Court of

Appeals for the Ninth Circuit.

B. United States Court of Appeals for the Ninth Circuit (Case No. 92‑35520)

09/22/92 Plaintiffs file opening Brief.

10/19/92 Defendant files Brief in Opposition.

11/04/92 Plaintiffs file Reply to Brief in Opposition.

11/03/93 Argued and Submitted to the United States Court of Appeals for the

Ninth Circuit, before the Honorable Judges Stehen R. Reinhardt,

Melvin Brunetti and Ferdinand F. Fernandez.

05/05/94 United States Court of Appeals for the Ninth Circuit issues Opinion

and enters Judgment reversing and remanding Opinion and Order of

United States District Court for the District of Oregon.

05/19/94 Defendant files Petition for Rehearing with Suggestion for Rehearing

En Banc.

07/08/94 United States Court of Appeals for the Ninth Circuit files Order

denying Defendant's Petition for Rehearing and Rejecting Suggestion

for Rehearing En Banc.

C. The Supreme Court of the United States (Case No. 94‑590)

09/30/94 Defendant files Petition for Writ of Certiorari.

10/31/94 Plaintiffs file Brief in Opposition to Writ of Certiorari.

11/18/94 Defendant files Reply to Brief in Opposition to Writ of Certiorari.

11/28/94 The Supreme Court of the United States grants Certiorari.

*3a IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Civil No. 91‑1154MA

WAYNE and JUDY ACTON, guardians ad
litem for JAMES ACTON, Plaintiffs,

vs.

VERNONIA SCHOOL DISTRICT 47J,
Defendant.

COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

(Deprivation of Civil Rights)

Plaintiffs allege:

PARTIES

1.

Defendant Vernonia School District 47J (the district) is a public
school district, located in this judicial district, organized under Oregon law
and acting under color of that state's law at all times mentioned below.

2.

James Acton (James) is a minor and a citizen of Oregon.

3.

Plaintiffs are citizens of Oregon and James's guardians ad litem.

*4a JURISDICTION

4.

This case arises under 42 U.S.C. 1983 and 1988. This court has
jurisdiction under 28 U.S.C. 1331 and 1343.

ALLEGATIONS COMMON TO ALL CLAIMS

5.

James is enrolled in a school operated by the district.

6.

The district has adopted a "Student Athlete Drug
Policy," which prohibits a student from participating in any district‑sponsored
athletic program unless the student, through the student's "parent and/or
guardian," consents to be tested for illegal drug use at the outset of the
program, and also consents to random, suspicionless drug testing during the
course of the program. (A copy of the policy is appended to this complaint as
Exhibit A.)

7.

James wants to participate in district‑sponsored athletic
programs.

8.

James does not take drugs and the district has no reason to
suspect that he does.

9.

James declines to consent to drug testing on the ground it
violates his constitutional rights. Relying on the policy described above, the
district refuses to let James participate in district‑sponsored athletic
programs.

*5a FIRST CLAIM

10.

The district's refusal to let James participate in district‑sponsored
athletic programs violates the Fourth and Fourteenth Amendments to the United
States Constitution.

SECOND CLAIM

11.

The district's refusal to let James participate in district‑sponsored
athletic programs violates Article I, Section 9, of the Oregon Constitution.

THIRD CLAIM

12.

The district's refusal to let James participate in district‑sponsored
athletic programs is unlawful because the district lacks statutory authority to
adopt or enforce its drug testing policy.

FOURTH CLAIM

13.

Plaintiffs are entitled to recover reasonable attorney fees under
42 U.S.C. 1988 if they prevail on their first claim.

DEMAND FOR JUDGMENT

14.

Plaintiffs demand that the court:

(a) Declare that the district's drug‑testing policy is
unlawful;

(b) Enjoin the district from enforcing the policy against James
and from interfering with his participation in district‑sponsored
athletic programs;

*6a
(c) Award costs to plaintiffs;

(d) Award attorney fees to plaintiffs; and

(e) Award any additional relief the court deems proper.

Respectfully
submitted,

/s/
Thomas M. Christ

THOMAS
M. CHRIST

OSB
No. 83406

ACLU
Foundation of Oregon, Inc.

Attorney
for Plaintiffs

*7a EXHIBIT A

Code:
JFCI

Adopted:
9/14/89

Revised:
8/9/90

Orig.
Code:

STUDENT
ATHLETE DRUG POLICY

DEFINITIONS:

Drug:

Any substance considered illegal or controlled by the Food and Drug
Administration.

Student Athlete:

Any student participating in athletic practices and/or contests under
the control and jurisdiction of the Vernonia School District.

Sport Season:

Fall, Winter, and Spring seasons begin on the first day of practice
allowed by the Oregon School activity Association and end the day prior to the
beginning date of practice of the next season.

POLICY STATEMENT:

In order to provide for the health and safety of the individual
athlete and other athletes, as well as providing a legitimate reason for
students to say "no" to drug use and providing an opportunity for
those taking drugs to receive help in locating programs which can provide
assistance, the District is conducting a mandatory drug testing program for
student athletes. The program is not punitive. It is designed to create a safe,
drug free, environment for student athletes and assist them in getting help
when needed.

*8a
PROCEDURES:

Consent:

The parent and/or guardian and the student athlete is required to sign a
written consent for drug testing prior to participating in the athletic
program. Any time an athlete refuses to be tested, he/she will be suspended
from the team for the remainder of the season.

Medication:

Student athletes who have been or who are or have been taking prescription
medication must provide verification (either by a copy of the prescription or
by doctor's authorization) prior to being tested. Student's who refuse to
provide verification and test positive will be subject to the actions specified
below for "positive tests."

Student Selection:

All student athletes may be tested at the beginning of each season.
Random testing will be conducted during the sports season. Students selected
for random testing will be selected by having their names drawn from a
"pool" of student athletes.

"Positive" Test:

If the student's test indicates positive results, a second test may be
administered as soon as possible to confirm the results. Parents will be
notified after the second positive test. If the second test is negative, no
further action will be taken. If the second test is positive, the following
action will be taken:

*9a
First Offense

1. Notify parent or guardian.

2. A due process hearing will be conducted by the principal with the
parent/guardian and the student.

3. Student will be given the option of:

a. Participating in assistance programs and taking a weekly drug test
for six weeks or,

b. Be suspended from participating in athletics for the remainder of the
current season and the next athletic season. The student will be retested
before beginning the next season for which he/she is eligible.

Second Offense

1. Notify parent or guardian.2. A due process hearing will be conducted by the principal with the
parent/guardian and the student.

3. The student is suspended from participating in athletics for the
remainder of the current season and the next athletic season for which he/she
is eligible.

Third Offense

1. Notify parent or guardian.

2. A due process hearing will be conducted by the principal with the
parent/guardian and the student.

3. The student is suspendedfrom participating in athletics for the
remainder of the current season and the next two athletic seasons for which
he/she is eligible.

VOLUNTEER
DRUG TESTING

POLICY STATEMENT:

In order to provide for the health and safety of the individual
student and other students, as well as providing a legitimate reason for
students to say "no" to drug use
*10a and providing an opportunity for those taking drugs to receive help in
locating programs which can provide assistance, the District is conducting a
voluntary drug testing program for students. The program is not punitive. It is
designed to create a safe, drug free, environment for students and assist them
in getting help when needed.

PROCEDURES:

Consent:

The parent and/or guardian and the student is required to sign a written
consent for drug testing prior to being tested.

Medication:

Students who are or have been taking prescription medication must
provide vertification (either by a copy of the prescription or by doctor's
authorization) prior to being tested. Student's who refuse to provide
vertification and test positive will be subject to the actions specified below
for "positive tests."

"Positive" Test:

If the student's test indicates positive results, the parents will be
notified and no other action will be taken.

GENERAL
AUTHORIZATION FORM

I understand fully that my performance as a participant and the
reputation of my school are dependent, in part, on my conduct as an individual.
I hereby agree to accept and abide by the standards, rules, and regulations set
forth by Vernonia School District Board and the sponsors for the activity in
which I participate.

I also authorize the Vernonia School District to conduct a test on
a urine specimen which I provide to test
*11a for drugs and/or alcohol use. I also authorize the release of
information concerning the results of such a test to the Vernonia School
District and to the parents and/or guardians of the student.

This shall be deemed a consent pursuant to the Family Education
Right to Privacy Act for the release of the above information to the parties
named above.

2. Answering paragraph 6, defendant admits that it has adopted a
student athlete drug policy, which policy is attached as Exhibit A to
plaintiff's Complaint. Defendant denies each and every remaining allegation of
paragraph 6 of plaintiffs' Complaint.

3. Answering paragraphs 7, 8, and 9 of plaintiffs' Complaint,
defendant states that it is without sufficient knowledge to form a response to
plaintiffs' allegations concerning the desires, activities and motivations of
James Acton and for that reason denies the allegations of paragraphs 7, 8, and
9 of plaintiffs' Complaint. Defendant admits in further response to paragraph 9
that it declines to permit James Acton to participate in the district sponsored
athletic programs without his having complied with the policy.

4. Defendant denies each and every remaining allegation of
plaintiffs' Complaint except as specifically admitted above.

*13a FIRST AFFIRMATIVE DEFENSE

5. Defendant's student athlete drug policy is rationally related
to legitimate district interests including, inter alia, the health, safety,
well‑being and education of the students under its care.

SECOND
AFFIRMATIVE ACTION

6. Defendant's actions were in good faith and based upon a
reasonable belief of the lawfulness of the conduct alleged.

Wherefore, having fully answered plaintiffs' Complaint, defendant
prays for judgment in its favor dismissing plaintiffs' claims, and prays for
its costs and disbursements herein together with its reasonable attorneys' fees
pursuant to 42 USC s 1988.

RESPECTFULLY SUBMITTED this 21st day of November, 1991.

LANE
POWELL SPEARS LUBERSKY

By
/s/ Paula A. Barran

PAULA
A. BARRAN

OSB
# 80397

DAVID
G. HOSENPUD

OSB
# 83241

Attorneys
for Defendant

(Affidavit
of Mailing Omitted in Printing)

*14a [Filed May 7, 1992]

IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title
Omitted in Printing)

ORDER

MARSH, Judge.

In accordance with my opinion issued on this date, plaintiffs'
claims for injunctive and declaratory relief are denied.

IT IS SO ORDERED.

DATED this 7 day of May, 1992.

/s/
Malcolm F. Marsh

MALCOLM
F. MARSH

United
States District Judge

*15a [Filed May 7, 1992]

IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title
Omitted in Printing)

JUDGMENT

MARSH, Judge.

Based on the record, this action is dismissed.

DATED this 7 day of May, 1992.

/s/
Malcolm F. Marsh

MALCOLM
F. MARSH

United
States District Judge

*16a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON

(Title
Omitted in Printing)

PARTIAL
TRANSCRIPT OF DIRECT‑, CROSS AND REDIRECT‑EXAMINATION OF JAMES
ACTON

* * * *

[12] DIRECT EXAMINATION

* * * *

BY MR. CHRIST:

Q. James, how old are you?

A. 12.

Q. And what is your birth date?

A. June 15th.

Q. Do you go to school?

A. Yes.

Q. Where do you go to school?

A. Washington Grade School

Q. Do you like sports, James?

A. Yes.

Q. Which sports do you like?

A. Basketball and track and I don't know about football. I was
going to go out for it.

Q. Did you go out for football last fall?

A. Yes.

Q. Did you go to any practices?

A. Practice, but after that, no.

Q. What happened after that?

A. I took home that sheet that we had to sign and we decided not
to sign it over the weekend.

*17a
Q. Who's "we"?

[13] A. Me, my dad and my mom.

Q. You didn't want to sign it either, did you?

A. No.

Q. Why didn't you want to take the drug test?

A. Because I feel that they have no reason to think I was taking
drugs.

Q. Do you still want to play sports if they'll let you play
without taking the test?

A. Yes.

MR. CHRIST: That's all I have, Your Honor.

THE COURT: Cross.

MR. POWELL: I have a couple of quick questions, Your Honor.

CROSS‑EXAMINATION

BY MR. POWELL:

Q. James, before you went out for football did you have a physical
exam?

A. Yes.

Q. And as part of that physical did you give a urine sample?

[14] A. Yes.

MR. POWELL: We have nothing further, Your Honor.

THE COURT: Redirect?

REDIRECT
EXAMINATION

BY MR. CHRIST:

Q. James, where was that exam?

A. At the Vernonia Health Clinic.

Q. And tell the judge how you gave the urine sample.

*18a
A. They had to close the door in there and peed in a cup and they handed it
through a wall.

Q. Was anyone in the room with you?

A. No.

Q. No one was watching?

A. No.

Q. Was anyone standing outside listening?

A. No.

MR. CHRIST: Nothing further, Your Honor.

THE COURT: All right. Thank you. You may step down, James.

* * * *

*19a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON

Case No.
91‑1154‑MA

THE
HONORABLE MALCOM F. MARSH

(Title
Omitted in Printing)

PARTIAL
TRANSCRIPT OF DIRECT‑ AND CROSS‑EXAMINATION OF RALPH AULTMAN,
Principal

of
Washington Grade School and Former Assistant Superintendent of Vernonia

School
District and Former Principal of Vernonia High School

* * * *

[18] DIRECT EXAMINATION

* * * *

Q. Mr. Aultman, can you generally describe the Vernonia community?

A. Yes. Beings I was raised there and came back about 13 years
later, Vernonia is a community about 1700 people in the city limits, about 1300
other people on the outside of the city limits. Primary industry is logging. We
do have some people that work out in the valley and in the technological field
Wah Chang, Nike, Tektronix. Low social economic factor in Vernonia, we have
about 25, 30 percent of our kids who are on privalegde lunches.

The community is very solid from the standpoint that when the mill
shut down in '59 they thought the city would fold, but it did not. It stayed
together. So Vernonia is a typical small town, a lot of pride in its existence
and it's like a lot of other small communities that aren't.

Q. Mr. Aultman, what role does interscholastic athletics play in
the Vernonia community?

*20a
A. It plays a very, very big part. You know, you look around and you see about
four or [19] five kids here from Vernonia and all of them are interested in
sports and they all play sports because in Vernonia there's not much else to
do. We don't have any fast food franchises, there are no teen centers, the entire
factor of the community centers around the school, and therefore, the outlet
for our young people is athletics.

It's a big thing. Everyone wants to play sports. It's an
opportunity for competition and it‑‑give you an example. In '83 we
had a budget crunch. They were cutting teachers, we lost our forestry program.
They were also going to cut athletics. Well, the people tried to keep the
program, the academic programs there too, but many people went out and chopped
wood and sold wood to finance the athletic program because it's all their kids
had. A booster club was formed to try to get money to kept the athletic
programs going because they realized it's a very important part of our
community.

Q. And what role did the athletes themselves play in the community?

A. Well, if you're an athlete you're looked up to in our Vernonia
system. Everyone wants to play if they can. And we deem it very important to
[20] try and get as many people involved as possible. And it's just important,
you know, to wear that lettermen's jacket in a small community. I still have
mine from 1962.

Q. And can you estimate the level of participation in
interscholastic athletics?

A. In high school we'll run 60 percent to * * * 65 percent of our
students. At the elementary level you're running with the whole program I'd say
pretty close to 75 percent of your students, so you're getting large numbers of
kids.

Q. Mr. Aultman, in your 12 years in the school district have you
had the opportunity to observe the patterns of drug and alcohol abuse in the
district?

*21a
A. Yes, I have. Alcohol has been around high schools for a long, long time.
Between 1980 and about 1986, '87 there was the typical‑‑I was
raised in Vernonia High School, a typical small high school with some minor
problems, disciplinary referrals would amount to about 40 to 50 a year, no real
strong discipline problems. We would have visitors come to our school and
compliment how well our kids were doing and how well behaved they were in
sitting in the classrooms and studying. And it [21] almost was like a few kids
moved in the community and it seemed like in a period of the year I was gone
and the next two years, the '87, '88 and '88 to '89 school year there was a
real upswing in drug use by our students in the Vernonia High School.

I can equate this to seeing and having teachers come to me and
having students being talked‑‑talking in their classroom about drug
use, about abuse, about parties. Kids were blatantly oftentimes talking about
that they used drugs and there was nothing school officials could do. And what
was really concerning us was a lot of these, it was the first. Back at the
beginning when I was there in '84 and '85 they had a fringe group that used
drugs. Very, very small. And they weren't really looked up to very much. They
were kind of looked down upon. But in '86 and '87, '88, '89 were that shift
that I saw many of our students, including our athletes, were starting to get
involved in drug usage and it was mushrooming.

I had a coach come to me in 1988 and said, "I'm concerned
about our football players because I'm hearing reports even from some of them
that there's a possibility of amphetamines being used before they play
football." That's shocking. [22] And that coupled with the amount of
suspensions, in 1988‑89 there were between 100 to 110 referrals that we
had that year. There were kids acting out, they were shouting in the halls,
they were banging heads together, they were writing essays in classes and
coming to us that really scared our staff because we had prided ourselves on
really helping our *22a kids. We're
concerned and we care about them. We were scared. We were really concerned
about these kids.

I had parents call me concerned about the drug use. I had‑‑the
school board was concerned. The community was concerned that when we approached
the city council for two weeks they brought in a policeman from Portland that
they hired for two weeks to try to patrol our areas across from the school to
try and keep kids from using drugs. That lasted about two weeks, then he had to
go. But we were facing some epidemic proportions of drug usage.

I feel and I think the evidence was there, that the community was
saying it, there were students that were telling us, the staff was telling us
and as the principal where we pride ourselves on a school that didn't have
this. I was [23] very scared.

Q. Mr. Aultman, what were those areas where the police officers
patrolled?

A. Well, across the street there was a place called Mario's Coke
Shack, right across from the high school. Also there was a mini‑mart over
there, then down the road there's a bridge that the kids could go under. And
this person the city council hired patrolled those areas to try to stop kids
from using drugs.

Q. Mr. Aultman, what were the drugs in your opinion that were
being used prevalently during that period?

THE COURT: If you're going from your own knowledge, then I'll
allow you to testify, if you have knowledge yourself of what drugs were being
used.

THE WITNESS: Yeah, I do.

THE COURT: All right. Go ahead.

[24] THE WITNESS: The students were in my office and they have
told me and‑‑ marijuana because they had *23a pipes and I confiscated them from students and they admitted
it. Alcohol, and there was a report of the‑‑that I have from the
coach and the students on the amphetamines.

THE COURT: All right. These will be‑‑I understand.
These are hearsay reports. I want you to go into this a little more on how he
gets these reports and why he gets them.

Q. (BY MR. POWELL) Mr. Aultman, can you describe how the reports
of amphetamine use came to your attention?

A. Four football players talked to the football coach and admitted
that they have used drugs, and amphetamines were those drugs, and the coach
told me the kids never come forward and said, you know, they did. And
marijuana, I did have that down to where I have the pipe and kids admitted it.

MR. CHRIST: Your Honor, I would move‑‑

THE COURT: I realize that you're having continuing objection to
this. I'm watching it very closely. Whether or not I consider this is an issue
I'll confront.

What I have to look at is the perception [25] of what is going on.
Now, I'm not going to rely on hearsay. What I want the questioning to address
is whether or not there is a system set up within the school whereby reporting
is to be made to the principal and that these reports came through that system.
That's what I want to.

MR. CHRIST: I just want to preserve‑‑

THE COURT: You have it preserved.

MR. CHRIST: Thank you, Your Honor.

THE COURT: Yes.

Q. (BY MR. POWELL) Mr. Aultman, in the Vernonia School District
was there a system for reporting drug incidents or suspected behaviors?

A. Yes, there was. Because I was going to try and address this
issue‑‑well, I will try. Yes, we have‑‑we train our
staff in impact training to look for these behaviors that oftentimes were
indicative of drug and alcohol use so we could work through the training
sessions that *24a our staff had had
to try and help students identify, deal with parents on drug and alcohol
problems and the staff would write out these various incidences, they would
write out what happened and they would tell me about it.

So there was a system set up to‑‑to‑‑ [26]
to report any type of observable behavior. And we trained all of our entire
staff during those years to be on the alert and look for this and how we could
stop it because we didn't sit still and idly watch this go on. We tried many
things.

Q. Mr. Aultman, did you make any other attempts to determine or
figure out how prevalent the drug use was in the district?

A. Other than some surveys done by some staff members, which they
related back to me their results, and just from some of the kids, especially in
the '88‑89 school year admitting that there was nothing we could do to
stop them. That's‑‑

Q. And were they admitting drug use?

A. Yes. Openly.

Q. And in your opinion as part of this increase in illegal drug
use, were the interscholastic athletes also a part of that increase?

A. Well, that was the thing that really concerned us. Like I said,
60 percent of the kids participate in sports and when we started the‑‑when
the drug usage really started and began, during the years of '87 to '89 it
escalated to where we had a large number of athletes who were [27] using and
openly admitting to many types to people, including the coach and a couple to
myself that they used drugs, but they basically said there's nothing you can do
about it. We did try and do things but that's not a question.

Q. So at this point was the district concerned about the use among
athletes?

A. Oh, yes. Yes. Definitely. Because when that student had told
the coach about using amphetamines, I immediately thought in my head what if
this kid gets hurt and they take him to the hospital and it is true *25a that he's on amphetamines and
we've been told and warned, are we liable? I was‑‑that really
concerned me when I heard of the amphetamine. Because like I said, we've had a
lot of training.

I've gone through this drug thing, you know, about marijuana,
amphetamines, the entire works, and so we were very concerned about the safety
and health and welfare of our students, yes. And the athletes, like I said, 60
percent participate. That's a large number. And we saw more and more of those
students actively promoting and actively demonstrating to us that they were out
of control.

[28] Q. What efforts did the district make to provide education or
motivation to the students to stop the drug problem?

A. We believe in education, number one. We not only taught units
on drug and alcohol in our classrooms, we brought in guest speakers over a two‑year
period. I spent over‑‑between four to $5,000 in bringing in
speakers to talk to our young people about the effects of drugs, Dutch Savage
Associates, Theresa Lush, we brought in Javonne Wilson, or Javonne White, a
comedian who did a video called "Waking Up To Drugs." Cost us over
eight or $900, to bring this man up from L.A. to try and help us.

Brought in drug dogs to try to sniff lockers. We‑‑we
set up with our staff and brought experts out to work with every staff member
on how to identify and how to deal with the drug‑related problem. How we
could help our young people, because that was the bottom line. We just saw some
kids being very much at risk. And everything we tried did not seem to work.

It continued. We would have kids get suspended. Like I say,
referrals were very, very high. There was two or three expulsions. We'd try
[29] everything in our power from punitive discipline to having our staff work
with kids, to bringing in drug dogs and authorities and speakers and like I
said, we spent a lot of money trying every resource at our command to stop the
problem.

*26a
Q. Can you recall any specific reactions to some of those speakers or some of
those programs?

A. Theresa Lush, a psychologist came in and talked about her son
who was addicted, how she tried to get him cleaned up but then he went back.
And all of our student body‑‑we worked the system around so every
kid could hear every speaker whenever we had it. During one year we spent a
whole month on drug awareness to our kids. And we spent the last big week by
bringing in as many‑‑ there was things going on all during the
month. And we brought in all these speakers. One of them, like I said, was
Theresa Lush. Her son Bill couldn't get off drugs. So she told how she had to
let him go. There wasn't hardly a dry eye in our students. It affected them.

Dutch Savage talked about how he had used and abused drugs and how
his mind was scrambled. And he had an assembly in front of all the students and
went to all the individual class rooms. [30] Javonne White, like I said, talked
to the entire group and then split out.

We had a Seahawk player, I can't remember his name right now, one
of the well‑ known guys, but we had a Seahawk player come in and speak.

We ran the gauntlet of trying to educate. And after Dutch Savage
got through I heard kids saying, "Well, Dutch Savage, he was addicted.
Look now, he's out selling the program. He came out of it and we can too."
That was the mentality that we got from some of our kids after our speakers.

And the major thing was it wasn't going to happen to them. They
could not see that.

Q. How did you decide to explore drug testing by urinalysis?

A. Well, in '89, the spring, our school, because of the behavior
of our students, the referrals, the suspensions, the parent conferences, all
the things that were happening, the staff got together and we were trying to
help our young people. It was going to boil down to some tremendous alternative
or massive expulsion. We were going to
*27a have to expel a large number of students. And our staff did not like
that idea.

If you expel students basically they're [31] out on the streets
and nothing happens. They're back in six months after the semester, and you
really don't solve anything. That's when in the spring it came to our attention
through The Oregonian, a supplement in the Sunday edition called Parade, there
was an article entitled "The Town Sends A Note To Drugs." It's about
a three‑page article, about a town, a community in Texas called Hawkins
who had instituted a mandatory drug testing program for extra curricular
activities.

I had previously been approached in 1988 by a president of the
Booster Club advocating drug testing. This is even before the Hawkins story
broke. Because there were some things happening in the federal courts that were
relevant to things about drug testing. This Booster Club person wanted to know
if we could do it. I said no, I would not do it until I knew there was no other
alternative and I had the community support. I was not going to step out.

* * * *

[36] Q. Okay. Mr. Aultman, in designing the policy what was your
purpose?

A. That's where the rationale came in. The purpose is threefold.
One, safety. That scared me as a principal when I heard of a possibility of
students playing with amphetamines because that's where Len Bias, all the
things we'd read about this really, really concerned us.

We wanted a policy that was not punitive. We're not‑‑we
did not want to go out and get kids. These are not bad kids that we're talking
about that were on drugs and that were abusing. These are good kids that were
out of control with what was being taken. Our concern is with them too. So we
did not want a policy, a policy that was punitive and was kick them out, get
them out of here and be done with it, because we would not have had to do this
program if we just wanted to expel kids.

*28a
So we wanted a prevention program and [37] intervention program built into our
drug testing system where there was buy‑back, where we could get help if
needed. We really wanted to do it from a non‑punitive stance.

* * * *

[41] Q. Are the boys clothed during this procedure?

A. Yes, they're totally clothed.

Q. What can you see of the student during this process.

A. Nothing.

Q. Are the student's genitals exposed at any point during this
procedure?

A. Never, ever. And the shower rooms here, I go through here all
the time and the kids are in the shower. But here on our drug testing, no.

Q. Mr. Aultman, is that shower area a communal shower?

A. Yes, it's open right here. Communal. Anybody walking through
this door or coming through this door here can see undress.

Q. And this locker room is where‑‑is that where grade
school boys dress down for athletics?

A. Yes.

Q. And, Mr. Aultman, is the toilet enclosed by a stall?

A. The stall is right‑‑there's a wall comes out here,
but this is open. I should not have that in there because it's an open area.

[42] Q. So there's no door on the stall surrounding the toilet?

A. No. No.

MR. POWELL: I'd like to have this diagram marked as Defendant's
Exhibit 110.

[Defendant's Exhibit 110 is a diagram of the grade school boy's
locker room]

THE COURT: It will be marked as 110.

MR. POWELL: Your Honor, I'd like to offer that into evidence.

*29a
MR. CHRIST: No Objection, Your Honor.

THE COURT: It will be received.

(Defendant's Exhibit 110 received.)

Q. (BY MR. POWELL) Mr. Aultman, who has access to the results of
the drug test?

A. Superintendent, principal and vice principal of the high
school. And the athletic director of the high school and grade school.

Q. Mr. Aultman, can you describe briefly where are the girls
samples collected?

A. In the girls' locker room. At the elementary school Mrs.
Peterson, our athletic director, does the paperwork right there while the
student is going to the restroom and in there the doors are closed. Students do
go into a closed door. Because on the girls in our school there are doors at
the elementary level. At the boys just on [43] the one there is not.

Q. So the girls give a sample within an enclosed stall?

A. Yes.

* * * *

[45] CROSS‑EXAMINATION

BY MR. CHRIST:

Q. Mr. Aultman, are you aware that there's been a nationwide and
statewide decline in drug use by high school students in the last few years?

A. I think that's on an average and yes, I'm aware of that.

Q. Okay. So you have no reason to conclude that the drug policy
rather than just the general trend is responsible for the decline in apparent
drug use, isn't that correct?

A. I have a different opinion on that. I was there. I saw the
differences and I believe there was a difference.

Q. Your policy as originally enacted wasn't limited to sports, was
it?

*30a
A. In our beginning when we looked at Hawkins and talked of Hawkins, the model
was much like theirs, which was other areas, but then we [46] decided that that
was not going to be the right way to go.

Q. My question was the policy was originally enacted beyond
sports?

A. Correct.

Q. To all extracurricular?

A. Correct.

Q. What are some of your extracurricular activities other than?

A. We have band, we have drama. Those are two. Leadership class
officers, class officers.

Q. Did you have any injuries in the course of those activities?

MR. POWELL: I'd like to make an objection, Your Honor. What's at
issue is the present policy to test interscholastic athletes.

THE COURT: Overruled. Go ahead.

Q. (BY MR. CHRIST) At some point in time you changed the policy to
limit it to just sports; is that correct?

A. Right.

Q. Okay. Why?

A. Because after the research we're talking about advanced
previously we determined that it was not legal if we carried any farther with
those [47] areas because of what we had seen, so we knew that in the federal
courts in Indiana it had been upheld for the athletics.

Q. So the justification for the current policy is the concern for
its legality? Is that correct?

A. Well, only from the standpoint that we had to have that we felt
to get by with our drug problem we had in our school, sir.

Q. How are students selected for testing?

A. The very first of the season they're all tested. Okay, like in
the fall sports season, all the students are tested. Thereafter, they are
randomly picked. Ten percent of the total number that are out for sports are
drawn *31a at random, and we decided
to have the students buy in by having them be the ones that would be tested.
They can't see who they're picking as they pick it out but we‑‑

Q. How often do you drawn names?

A. Every week.

Q. Do you draw during the school day?

A. Yes.

Q. How many students then do you select?

A. Example, if you have 30 people out we would usually do about
three.

[48] Q. Do you do the testing at the same time?

A. As soon thereafter as possible that day, yes.

Q. So you would draw a student from the classroom to go test them?

A. Sometimes in the classroom it can be, if that's when they can
go. It takes about five minutes, but we do it also sometimes at noon, after
school, before school, breaks, yes, sir.

Q. You take the students to the locker room?

A. Yes.

Q. One‑by‑one?

A. Yes. On the random.

Q. On the Random?

A. Yes.

Q. And you're present while the student gives the urine test for
the boys?

A. Yes, I'm in the room.

Q. Are you watching them while they urinate?

A. It varies. Most of the time if I find something to work on,
because the proximity, the way the urinals are, there's no‑‑there's
no water to be tampered with, so I may or may not. It's not a necessary thing
that I have to do. I don't train myself to watch the kids.

[49] Q. You're close enough to watch?

A. Yes.

Q. Okay. And you're listening as well?

A. From where I am on the bench I really couldn't hear. I don't
recollect ever trying to hear them do they.

*32a
Q. You're close enough to hear?

A. Yes.

Q. Have you caught anyone cheating?

A. I have not caught anyone cheating, no.

Q. But you're there to prevent cheating, correct?

A. True.

Q. To that extent you're listening and watching the students doing
it?

A. I can see what the students are doing, yes?

Q. What if the students can't urinate at that precise moment?

A. We let them go back to class and come to us when they can.

Q. I think you referred to the policy as non‑punitive. What
exactly do you mean by that?

A. When we first got Hawkins's program on the first offense that
there was a positive test, [50] they suspended a kid for the remainder of that
athletic season and did not allow them to participate.

We built into our policy that on the second‑‑after
their first test was positive we tested nearly for a second time immediately.
If it was a double positive to bring the parents in, notify them we have a
double positive and then there's two alternatives for the student. We tell the
sudent, "Look, there's twice positive. You know, we're going to offer you
these services which we have people with programs to help, intervention,"
and if they agree to that and if they'll be tested weekly to show they're
trying to quit the drug, we will let them continue to participate.

No other program that I know of and have read about allows the
students that opportunity to stay involved and that's what I mean by non‑punitive.
We're not threatening we're going to exclude you totally from the program or
suspend you or any of that type of thing. And nothing happens to the students
if they are positive, as far as academics and being excluded from school.

Q. For a first offense‑‑and that's the [51] word you
used, correct, the first time you flunk the test?

A. Yes.

*33a
Q. You give them a choice, they can either get kicked off the team or they can
be forced to go to counseling or undertaking further testing. That's the
choice, isn't it?

A. Yes.

Q. And they can't say "I don't want to be here?"

A. If they say they don't want to do it, then they're excluded.

Q. Okay. And you don't consider that punishment?

A. I believe extracurricular activity is not required, so no, I
don't consider it‑‑

Q. Don't you think that students who are kicked off the team or
are made to go to counseling and made to take urine testing would consider
themselves punished?

A. I can't answer that.

Q. Okay. For a second offense, you don't get any option, do you?

A. You still have the option that you can still do that, and
within a couple seasons you [52] can‑‑within the‑‑depends
when the season occurs, okay? It's the third offense that the student is
totally off for the year. The second offense is very similar to the first
offense, I believe. Because we're trying to give them some time.

THE WITNESS: Could I have some more water, please?

MR. CHRIST: While you're up could the witness be handed
Defendant's Exhibit 104, please.

Q. (BY MR. CHRIST) Would you look at the top of the second page of
that exhibit‑‑

A. Uh‑huh.

Q. ‑‑Where it says "Second Offense." Does
that refresh your recollection about whether a student is automatically kicked
off a team for a second time?

A. I need a clarification. You're saying that on the second
offense of this policy that the student is excluded from all athletics for the
year. Is that what you're saying, sir?

*34a
Q. Listen to my question. For a second offense a student is suspended for
participating in athletics for the remainder of the current season in [53] the
next athletic season?

A. True.

Q. There's no option to say, "I'll continue in a program and
go to counseling," is there? You don't get the choices you get for the
first offense, do you?

A. Yes, you do. It's just not spelled out there.

Q. It's not spelled out in the policy?

A. Right. Exactly. We have a policy here the student's suspended
from participating in athletics for the remainder of the current season and the
next season for which year he or she is eligible.

Q. So are you suggesting the policy is inaccurate?

A. No, it's not inaccurate. The policy just does not refer back to
the participation in the assistance program of the weekly drug test, but is
understood that it is only on the third offense that there's a total removal
for the entire year.

Q. Okay. Is that punishment?

A. Again, that's‑‑that's an opinion. To me there's
been an opportunity. It would depend on the person.

[54] Q. You mentioned use of drug dogs.

A. Uh‑huh.

Q. And what did you do with the dogs?

A. This is an attempt many schools are trying to‑‑at
that time Vernonia is not the only school that is going through this, the throes
of drug problems. There are other school districts, Scappoose and others in
Columbia County, and there was a use of a drug dog unit in Columbia County
which is accessible to the school.

There were several parents, like I said, who were concerned about the
problem of drugs in school. That was one of the things they advised us to do
to, use a drug dog to see if there were drugs in school.

Q. They went around with dogs‑‑

A. Yes, and sniffed lockers.

Q. Did you find any drugs that way?

A. Yes. But unfortunately we messed it up.

*35a
Q. How'd you mess it up?

A. The dogs stopped at a locker. We got the student out of class
to open the locker for us and we searched through it. This was right before
lunch. Fourth period. In the locker was a transistor radio. I picked the radio
up, not [55] thinking to go through that device. I could not find any drugs. So
we shut it back up and told the kid we apologized to him, that it was something
wrong with the dog.

I had some‑‑two students immediately come up to me when
the bell rang for lunch. They said, "Mr. Aultman, check the locker, it's
in where the batteries are normally kept. That's where the marijuana is
stashed." I immediately went to the locker and the transistor radio was
gone.

Q. Any other drugs found through use of dogs?

A. No.

Q. How many times did the dog come to the school?

A. One.

Q. Why didn't you continue that program?

A. We felt it wasn't effective. It wasn't effective.

Q. After trying it one day?

A. Yes.

Q. Have you tried voluntary drug testing?

A. No, we haven't because in the school that we have, Churchhill
and other schools we studied at this time found to be very ineffective in our
[56] opinion.

Q. But you didn't try it?

A. No.

Q. Did you try drug testing only those students that you suspected
of taking drugs?

A. You run a real fine line of reasonable suspicion, probable
cause, and we‑‑ we really felt that by trying to design a policy
that combined all of our kids and, like I said, no, we did not.

Q. You have a general search and seizure policy at the school.
Don't you?

A. Yes.

Q. And that's expressed in the student handbook, isn't it?

A. Yes.

*36a
Q. Okay. And that permits you to test only on the basis‑‑or to
search a student's person only on the basis of reasonable suspicion; is that
correct?

A. I'm a teacher and athletic director and leadership of student
council advisor.

Q. And over your 18 years in the district did you have the
opportunity to observe the frequency of injury to extracurricular athletes?

A. Yes, I have. Both as a coach and as athletic director.

Q. Did you notice any trends in the late 1980's, let's say 1985,
1989 as far as injuries in the district?

A. Yes. There‑‑the frequency and also the severity of
type of injury seemed to be one of esculating.

Q. And over your 18 years in the district did you have the
opportunity to observe any increase in students' use of illegal drugs or
alcohol?

A. Yes. Some of that was hearsay. By [67] listening to students'
conversations and also my observation of students, small groups of students
across the street at the high school at a small restaurant, La Mario Coke Shop
which is directly across the street from the school office, observation of them
passing joints back and forth among *40a
themselves during the noon hour and sometimes before school.

Q. Did you have the opportunity to observe over those 18 years
whether there was any noticeable trend in the use of illegal drugs?

A. Again, observation and‑‑of students' behaviors,
training and stuff, again this is my opinion and in the school, within the
classroom, within the halls, during sporting events and the blatancy on which
students would talk about their drug use and in the classroom, in the hall,
there was a hostility, a power struggle among students and teachers.

In the classroom it was very difficult to teach because we dealt with
this anger and this hostility. This is indicative of drug use. Also other
things too can play a role, but primarily the drug use appeared to be the
forerunner because of the students' conversations.

[68] Q. Are you familiar with the term " The Big Elk"?

A. Yes.

Q. Can you tell the Court about where that term came from and what
it denotes?

A. I'm not really sure where it came from, but it was a group of
students, athletes and actually that's about all I know about it.

Q. Were they‑‑from your observation were they involved
in use of illegal drugs?

A. Yes.

Q. This again is in the time frame of the late 1980's?

A. Yes.

Q. Did you ever personally observe students under the influence?

A. Yes, I did. I had a student arrive in my classroom after a lunch
break and I had to escort him to the office. He was clearly obviously
inebriated and was sent home from school.

Q. Back to the Big Elk. Were there some unusual behaviors of those
individual students who were student athletes who were identified as members of
the Big Elk?

*41a
A. There was a thing with each other in the [69] hallway and there were the
loud bugling, the loud conversations, down the hall. It was more or less a
signaling to each other and a camaraderie.

Q. Was that different than it had been, say, in the early 1980's,
had you seen that type of behavior before?

A. No, I hadn't.

Q. What's a disciplinary referral?

A. A disciplinary referral is a form which the teacher fills out
which states the behavior of a student or unacceptable behavior of a student in
a classroom and a hall, even on the school premises, and describes that
behavior. And then it is then also referred to students who sign a rebuttal or
a comment in regard to the discipline and then it's sent on to the office.

Q. Is this a standard practice within the district?

A. Yes, it is.

Q. Did you notice any change from the early 1980's to late 1980's
and the number of disciplinary referrals?

A. I can speak for myself, yes. In my own classroom I used to
pride myself on the fact that I could handle my own discipline, and in 1985 a
group [70] of students entered my classroom and I had a number of these
students that were in the‑‑this little group, this Big Elk group,
and it came to a point where I had to send referrals to the office and my
referrals alone increased in number on a weekly, sometimes on a daily basis for
a period of time until some of those students were released from class.

Q. Now, since adoption of the drug policy have you noticed any
change in the number of disciplinary referrals from your classroom only?

A. Yes. Terribly.Again back down to my own problems of having to
refer to the office.

Q. Is there in fact a decrease?

A. Decrease? Considerably, yes. In fact, almost zero.

Q. From your observation was drug and alcohol use prevalent among
students participating in interscholastic athletics in the late 1980's?

*42a
A. Again, observation and the hearsay of students who were talking about the
use of amphetamines, even diet pills if they could get them from their mothers'
cabinets, conversations within my classroom.

Q. And you dealt primarily with the female [71] athletes?

A. Yes.

Q. And were the female athletes also talking about drug use as
well as the male athletes?

A. Yes, they were.

* * * *

[75] Q. All right. Would you tell us how a student comes in to be
tested?

A. I bring them into my office area here, set them down at a chair
next to me at the desk, go through the process of paperwork. They do‑‑they
then enter into this restroom area, which is right beside my shoulder. There is
a toilet area and a shower area here.

Q. That restroom has a door on it?

A. Yes, it does. A closed door. It does have a grate‑‑an
air type grate there to that.

Q. So the female student enters into the restroom and produces the
urine sample?

A. Right, and brings it back out to me and I finish up the process
and then they leave.

Q. Is the female student clothed?

A. Yes, they are.

Q. Do you directly observe the urination?

A. No, I don't.

Q. You're outside the door so you could hear the natural sound of
urination?

A. Yes.

MR. MULLMAN: Thank you. Would you mark that Exhibit 111.

[Defendant's Exhibit 111 is a diagram of the high school girl's
locker room]

[76] THE CLERK: 111?

MR. MULLMAN: Your Honor, we would offer 111.

*43a
MR. CHRIST: No objection, Your Honor.

THE COURT: Received.

(Defendant's Exhibit 111 received.)

Q. (BY MR. MULLMAN) The locker room has communal shower?

A. Yes.

Q. That is a communal dress area as well?

A. Yes, it is.

Q. Is this the area that's normally used by female students
interscholastic athletes in dressing down for their activities?

A. Yes, it is.

Q. Since the adoption of the drug policy have you noted any trends
in the frequency of injuries to interscholastic female athletes?

A. I have not divided it between female or male athletes, but as
athletic director there has been a decrease in the number of accidents that
come through my office, yes.

Q. And those accident reports normally come to your office; is
that correct?

A. In formal conditions, yes. Sometimes [77] bypass to the main
office, but I am aware of accidents.

MR. MULLMAN: Your witness.

CROSS‑EXAMINATION

BY MR. CHRIST:

Q. What girls sports are offered by the district?

A. In the fall we have volleyball and cross country. I'm speaking
for the high school level. And in the winter sports we have girls' basketball
and in the spring sports we have track or golf.

Q. Have you had any injuries in the golf program?

A. Not recently, no. But in the past years we have during the late
eighties.

Q. What kind of injuries?

A. Hit with a golf ball. And also one person was accidentally
struck with a club.

*44a
Q. What kind of injuries do you have in the track program?

A. Muscle‑type injuries, pulled muscles, improper warm‑up.
But you also have the potential for javelin or discus‑type injuries.

[78] Q. I don't want to know about the potential, I want to know
what injuries‑‑

A. What we normally‑‑primarily muscular injuries.

Q. And this is the same type of injuries in the cross country
program, I take it?

A. Yes.

Q. And in basketball?

A. Muscular, but we also have knee injuries, we have shoulder
injuries.

Q. Okay. You just finished the basketball season, did you?

A. Yes, we did.

Q. Did you have any injuries during that season?

A. Yes, we did.

Q. What kind?

A. Knee, ankle.

Q. What knee injuries?

A Types of torn ligaments or cartilage where they need surgery.

Q. During the testing did I understand you to say there's a grate
on the door to the restroom?

A. Yes, there is.

* * * *

[80] Q. Have you ever seen students take drugs and then play
sports?

A. No. Not immediately play the sport, no.

Q. Have you ever seen a student take drugs?

A. Yes, I have.

Q. How many times?

A. There were numerous times with observation from the school
office to the restaurant across the street of the smoking of marijuana.

A. I teach English, World Literature, survey of lit and comp,
which are required courses for all students. I teach Speech and I'm a drama
director.

Q. Are you involved in any way with scholastic athletes at
Vernonia?

A. Only in the sense that I teach student athletes.

Q. You have a child that's involved?

A. My son is a junior in high school in Vernonia and he is
involved in student athletics.

Q. But you are not a coach or anything like that?

A. I am not a coach.

Q. Over the years at the district did you observe any trends in
students using alcohol and illegal drugs?

A. Yes.

Q. And over that 13 years would you tell the court what you did,
in fact, observe?

*46a
[87] A. When I first came to Vernonia in I believe 1979, the first year that I
taught I followed a teacher who had been there for 30 years and I had a few
discipline problems just because students were testing me. But after that for
the next ten years I prided myself on and I've always provided myself, I've
taught for 23 years, on my ability to handle the discipline in my classroom.

One of the goals of my teaching is to establish a positive climate
of trust between myself and my students, and I have been able to do that.
However, in the late eighties I would say beginning the years '85 thorugh '89 I
noticed a tremendous difference in the kind of behavior problems I was having
to deal with. Completely different than I had dealt with the previous years.

Q. What kind of behavior problems were those?

A. I could characterize them as students who were much more
hostile, who wanted to dominate the classroom, whose behavior was very erratic
and I think the other word I would use is very, very gross and inappropriate.
Much different than I had in the previous 16 years. Something that I noticed considerably
and was unable to deal with myself as [88] I have been able to deal in the
past.

Q. And in that period '85 on did you notice there was a
significant increase in drug talk?

A. If I could, I could give a specific example. I am trained in
writing using the Oregon writing project model and that model is based on using
personal experience as a beginning point for writing. And my students using
that model, often I've had students write about things which are‑‑well,
they all write about things that are incredibly dear and important to them, and
I've had to deal with things like sexual abuse and drug abuse in the home.

During those three years I began getting essays from students with
the theme of‑‑I remember one essay in particular, the name of it
was "Party Till We Puke," and it was written by a student who wrote
an essay about the goings on of he and his friends, their drug use, their *47a parties and he glorified it in
the essay. And that was only one example that I particularly remember, but I
got several essays on that theme and‑‑

Q. "That theme" being drug use?

A. Drug use. Drug use, yes. Talking about drug use. And these were
essays that they handed [89] in to me that they knew I was going to read and
that I was going to grade.

Q. And did you notice any behavioral changes in that late eighties
period?

A. I noticed tremendous behavioral changes.

Q. What kind of things did you see?

A. As I said before, I noticed behaviors that were extremely
erratic and gross. I had a fifth period class and‑‑

Q. Fifth period after lunch?

A. Yes. Directly after lunch. And students would come back from
that class and it was extremely difficult for me to control that class in those
particular years.

I remember one instance I think there were 23 or 24 students in the
room and a student sat at the back singing "Jesus Loves Me" at the
top of his voice.

Q. That was rather unusual?

A. I've never experienced anything like that.

Q. Did you go talk to the student?

A. I talked to the student. It was kind of wild, his behavior,
kind of dancing around in the back of the room, and I said‑‑tried
to talk to [90] him and he said, "well, I'm just high on life," and
tried to calm him down. There was no way. So I wrote a disciplinary referral
and‑‑to the office and he was taken from my class, but I don't
remember if he was suspended for two days. I can't remember. But I did get him
back in class after that.

Q. Did you notice any other types of odd behavior of students in
class, for instance, writing inappropriate language?

A. Yes. There was a lot of talk, as I said, about the "Party
Till You Puke" thing, the drugs. They didn't mean to overhear it, but it
just went on and I did hear it.

*48a
There was more use of profanity. I remember one specific incident, and this was
in a fifth period class also, where a student came into the classroom, a class
of boys and girls, and marched into the classroom and sat down at his desk and
looked over at a girl next to him and at the top of his lungs basically in
front of all my students shouted, "suck my dick." And this kind of
behavior has never happened to me before in my teaching. And these kinds of
comments‑‑

Q. And did you talk to that particular [91] student about the
comment?

A. Absolutely. I told him to pick up his books and I called the
office and there was a disciplinary referral. I believe he was suspended from
my class for three days. But he also came back to my class.

Q. Have you ever heard a term "drug cartel" referred to
in the school?

A. Yes.

Q. Can you tell the court what that referred to?

A. There's a group of students who bragged about their drug use in
their essays and I had all these students in my class. They were student
athletes, who talked about how cruel it was to use drugs and alcohol, who in a
sense intimidated other students. They would walk down the hall and I would
stand right outside my classroom and they would shout and bang their heads into
the lockers as hard as they could, they would butt heads with each other. They
would be real loud.

Sometimes in the classroom I would have‑‑trying to
calm them down. There was such a hostile atmosphere toward me that I just had a
really difficult time. It bothered me terribly [92] because I thought what a
difference for 15 years I was in control of my classroom, I did not have these
kinds of problems. Why is this happening? Why can't I deal with it? And I had
to resort increasingly to having them removed from my classroom because I
couldn't deal with them in the classroom.

*49a
Q. Did you personally participate in any educational efforts to remove drug
education prior to the time the district adopted the drug policy?

A. Yes. I'm a drama teacher and during‑‑I think it was‑‑I'm
unclear of the years here. I think it was either '87‑88 or '88‑89.
I'm sorry, I can't remember the exact date.

Q. That's all right.

A. But it was during the time that we had the drug prevention
month. And I had a drama class and there was a play called "The
Attic" that Hillsboro High School had put on and it portrayed the lives of
11 or 12 teenage addicts and what happened to them. And the drama class
discussed it and said they would really like to put on this performance as part
of the drug education awareness.

And so we practiced it and we performed [93] it five or six times
for the high school in small groups and we also performed it at the 7th and 8th
grade level.

Q. And why did you select that particular day?

A. It was a joint decision by me and my students. They had heard
of the play. I had one student who was student director and we discussed it and
they felt that they wanted to have some kind of involvement on their level of
bringing the consequences of the drug use to their peers.

There were other speakers coming in from the outside and they
wanted to participate on a personal level in letting their friends and their
peers know what drug use could do.

Q. And from your personal observation were these efforts effective
in curbing the drug abuse in the school?

A. The discipline problems that I was having in my classroom
didn't change after that month. There was no change. I remember we had a series
of four days and there was something that hit the students every day, and the
Friday after those‑‑that was over, five, I don't know the exact
number, four or five student athletes skipped school and [94] went to a
parent's house and used drugs *50a
and alcohol and they were‑‑the police raided that. That was during
school. So that happened immediately after this whole months of education.

Q. Is it fair to say it didn't appear effective in your opinion?

A. I didn't see that it was effective.

Q. Let's turn to the current school year, 1991‑'92. Have you
noticed any difference in the disciplinary referrals from your class to the
principal?

A. I've had no disciplinary referrals at all.

Q. After the adoption of the policy did you notice any difference
in disciplinary referrals between that and the current year?

A. Yes, I did. Last year I think I had two disciplinary referrals
and the first year that the drug testing was in effect, I can't remember exactly,
but I would say no. Maybe one to three, something like that.

Q. Has the excessive drug talk stopped in your class?

A. I've not heard any drug talk in my class this year. Maybe a bit
at the beginning of last [95] year. Nothing this year.

Q. How about the classrooms, any difference between when the
policy was adopted in this behavior?

A. I don't detect the hostility. I'm able to establish a rapport
with my students, have the kind of class atmosphere where they respect each
other and me, and I'm able to teach them the kind of environment that I was
able to teach in, as I said, those first 15 or so years before this late
eighties and I thought everything‑‑I could not understand what was
happening. I‑‑I didn't‑‑I didn't change my teaching
style. It was so severe in the year of '88‑89 that I was seriously
considering not remaining in teaching because I felt that I could not reach my
students.

I could add that my teaching had been successful. I was a master
teacher. I received merit pay several times
*51a from the district. But I felt that I could not continue because I
could not reach a great many of my students.

MR. MULLMAN: Nothing further.

* * * *

[97] CROSS‑EXAMINATION

* * * *

Q. So again you could be seeing the benefit now of all the work
you did back then?

A. I can't‑‑I suppose that's possible.

Q. Really you have no reason‑‑I mean, you can't say
for certain what is the cause of the current situation?

A. My observation was that the behavior problems that I had were
severe during those two years and after they did not change after the
education, they changed drastically after drug testing was implemented.

Q. You talked about some essays that the students wrote that
talked about drug use apparently.

A. Yes.

Q. Do you have any‑‑you don't know for sure whether
any of those essays are true, do you?

THE COURT: Any of those what?

MR. CHRIST: If those essays were true.

THE COURT: Oh, oh, okay.

THE WITNESS: Only in that the students told me they were true.

Q. (BY MR. CHRIST) These students, was there only one?

[98] A. No.

Q. How many students are you talking about?

A. Probably I would guess‑‑this is an estimated guess:
Eight or nine.

Q. Hoy many students have you taught since 1989? Just an estimate.

A. Probably have about 90 students per year.

Q. The drug cartel, how many students were involved in that as far
as you could tell?

A. I would identify the leaders of that group, the role models,
probably seven to ten.

*52a
Q. Did you ever actually ever see any of them taking drugs or just talking about
it?

High
School Teacher, Wrestling Coach and Former Vernonia High School Football

Coach

* * * *

[104] DIRECT EXAMINATION

* * * *

Q. Now over your 11 years with the district as a coach and as a
teacher, have you had the opportunity to observe any patterns of students use
of illegal drugs and alcohol?

A. Yes.

Q. Would you tell us what you've observed?

A. When I came to Vernonia in 1981 I was really impressed with the
spirit, the lack of drug use, having moved from an area that was‑‑drug
use was rampant in Southern Oregon. The‑‑over that began to erode.
Beginning in about '85 you would hear isolated rumors about kids on the teams
doing drugs.

It‑‑when I was an assistant coach the head coach was
called in and I believe it was in the football season of '85 and apprised of
the fact that parents called and said that some of their sons had‑‑that
other kids on the team had done drugs on a road trip. That was the first time
that [105] we had really been confronted.

After that we began to see‑‑maybe opened our eyes and
so we began to look, and we began to see behaviors that as we became better
trained and read materials, you *54a
know, appeared to us to be not a normal behavior to the head coach and I at
that time.

Q. This is the football coach?

A. Yes.

Q. How did these things come to your attention?

A. As I said, the first instance was kids on the team had told
their parents that some kids were doing drugs on a road trip at a restaurant
when we were eating. After that we‑‑you know, we heard things that
kids would come and tell us that this is what they heard, you hear kids
talking. In particular, after seasons were over when kids felt you no longer
had the‑‑the authority to remove them from the team, "oh,
yeah, man, we were so blasted, you know," that was ' 86, '87.

We had a couple instances, basketball team where kids were
drinking on a bus coming back from a trip. They were disciplined. That was in
what, I believe ' 86. We had another instance in [106] track where students
were‑‑stole some beer at a Mini‑Mart or something on a road
trip. Were removed from the track team because of it. That‑‑I
believe that was in the spring of '87.

We‑‑it began to grow. Began to see more‑‑more
athletes across the street from the school in the little restaurant being
involved in this thing, in this group. And then you'd hear them talk about it.
You know, we had team dinners at our house and you couldn't believe the same
kids, you know, would come to your house and then be polite and then you'd see
them four days later in school and their behavior would be radically different.

So it was kind of like an escalating thing. It just continued to
seem to grow and you could almost weekly see more kids getting into this pool,
so to speak.

* * * *

[110] Q. (By MR. MULLMAN) In 1989 did your wrestling team have an
opportunity to travel to Madras, Oregon?

A. Yes, we did.

Q. What was the purpose of that trip?

*55a
A. To participate in a district 1A wrestling tournament that qualifies wreslers
to go to the state tournament.

Q. Did any of your wrestlers get injured in that trip?

A. Yes.

Q. Tell us a little bit about the injury.

A. Well, we had a boy wrestling in the district finals who had
qualified the year before to go to state. Only the top two kids in each weight
class qualified to go to to the state tournament. He was a very good wrestler,
a tough athlete. Had been extremely competitive. He shot [111] a take‑down
in the first 15 seconds of the district finals. Went‑‑instead of a
normal reaction, went to his hands and knees and stayed on his hands and knees.
His opponent cross‑faced him, went to what we call a two‑on‑one
arm bind, the kid didn't react, he didn't do anything. He just stayed in that
position. The kid hammered across him and pulled his elbow up in this
(demonstrating) manner. It's a move that we've practiced probably close to a
thousand times over the years that that boy participated.

He was severely injured. Had to go‑‑he didn't get to
go to the state tournament because of that. He had to go to the doctor. He had
several kinds of injuries in the sternum area with collar bones connected to
the sternum, several months before he could function normally with his arms.

Q. And was there any reason to suspect that students who were
participating were under the influence of some type of drug?

A. That night I took him‑‑when we took him back to the
motel, iced him up, okay, the next morning I got up, went down to his room to
see how he was doing. It was 11 o'clock when we got back from the motel. When I
walked into the room the [112] smell of marijuana enclosed you and I‑‑there
were no doubt somebody in the room was smoking marijuana. And I went to get my
assistant coach to verify the existence.

There was‑‑and I‑‑by the time we got back,
the room had been sprayed with what had to be a mixture of every *56a aftershave lotion and hair spray
and deodorant that those kids could find. There were four kids to a room.

As I looked back on the injury later that afternoon on the way
home, it's a long bus ride, I thought the kid didn't react like he had reacted
a hundred times in the past. There was no way of particularly proving at that
point in time whether he was under the influence. Certainly a strong suspicion.

Q. And have you ever observed any football game films where you
got that same kind of strong suspicion that something was wrong?

A. Yes. You practice certain situations over and over in football
to prevent injuries, to the kids to react to make‑‑you know, win
ball games, to protect themselves. That's my first rule when I coach football
was to teach the kids to protect themselves. And during this period of time
[113] there would be situations where I was looking at the film and the kid
would get an ankle rolled on, you know, opposing player would come up to block
him and get to his ankles and the kid would get a sprained ankle.

And I'd watch it and I'd think why didn't he react? I mean, it's
just like, you know, you watch, you say to yourself we've drilled on that
particular thing a hundred times a week and the kid wouldn't react. And not
always were they injured, but it was a situation where they just didn't react
in the manner that they would normally react, just as athletes‑‑as
people walking down the street would react.

Q. Did the wrestler ultimately tell you that he had been under the
influence?

MR. CHRIST: Your Honor, hearsay.

THE COURT: Sustained.

Q. (BY MR. MULLMAN) In response to your observations of these
films and your perception of the wrestling, did you decide to do anything about
what you perceived as a problem in Vernonia?

A. Not just as a result of that. They were the‑‑let's
say the culmination, the point at which I said we're *57a losing these kids, we had to do [114] something, we have to
try something different than we've been trying.

Could I go back to an experience that I had earlier in coaching?

Q. Sure.

A. Okay. In November of 1977 I was teaching at‑‑coaching
at Glendale High School, and on the girls' volleyball team had a girl that was
extremely popular in school, and was rather heavyset. We had our awards banquet
on a Tuesday night. She got the award as the most inspirational volleyball
player.

She went to a party, a going‑away party for a girl that was
moving the next day. Drank about one and a half beers and died of a heart
attack in the middle of the party. The evidence about her death is that she had
been using speed, diet pills that she had‑‑that she had gotten from
an aunt, unbeknownst even to the aunt she was taking them. The alcohol and the
amphetamine reacted, she died, you know, 30 kids standing around.

The second hardest thing I ever had to do in teaching was to sit
in first period the next day when most of those kids were there in the class. I
[115] have no training to deal with that situation as far as how you handle
grief. But it alarmed me and, you know, I just read on my own then about the
reactions of different drugs ever since the girl died. And when‑‑when
these things began to occur and the statements by kids, especially about the
use of speed, and I started a series of discussions with Mr. Aultman and I
said, well, what‑‑you know, what can we do to drive home the fact
that these drugs are dangerous. You know, it's not the kids that are the enemy,
it's the drug.

Q. About when did these conversations with Mr. Aultman begin?

A. Probably occasionally‑‑by that I mean once every
three or four months in 1987. More often than that in the spring of '88. By the‑‑by
February of '89 once every two weeks or so. And he was extremely reluctant *58a to talk about drug testing. We
saw the article from Haw kins, Texas, and so we discussed that also.

* * * *

[118] Q. (BY MR. MULLMAN) I don't care what other people told you.
I'm asking you what did you decide to do in particular?

A. I decided to do what I could to institute a mandatory drug
testing policy at Vernonia‑‑at the Vernonia school district.

Q. What did you do?

A. I talked to Mr. Aultman. As he stated, we had had a discussion
at the faculty meeting over the issue. I said I will be more than happy to do
the legwork to find out if there are any cases that have been upheld so that we
can do this. He gave me information to spend a hundred dollars or so on phone
calls to track down information.

I called Time Magazine in New York City to get the phone‑‑the
names from Hawkins Texas because The Oregonian hadn't kept a copy. Time
Magazine, as I understand at that time it was an insert. I called the
superintendent of Hawkins School District, talked with Mike on the phone, felt
uncomfortable at some points. I felt that education had failed, everything I'd
done in my life that I believed in didn't work‑‑

Q. Did you get a copy of the Hawkins policy?

A. Yes. I talked to him‑‑I asked him at the time, I
said did you‑‑has this gone to court, because it seemed rather
broad. They tested everyone‑‑

Q The entire student body?

A. Everybody that was in any form of extracurricular activity,
including leadership and so on. My concern wasn't that somebody in leadership
was going to get hurt or, you know, have these health problems, my concern was
kids on the football and wrestling teams weren't reacting and, you know, they
were getting hurt.

I‑‑I asked him if there were any cases that had been
taken to court because theirs had not been. He said *59a yes, there was a case in Indiana that had just been settled
in late 1988, Tippecanoe County in Indiana. And I said‑‑asked him
if he could provide me with materials. He said he would [120] try to do that.
He then sent me a copy of their program from Hawkins.

Q. Did you also get materials from the Tippecanoe‑‑

A. Yes, a few months later.

Q. And using those materials, what did you do?

A. I worked in conjunction with Mr. Krost (PH), who was our
athletic director at that time, and Mr. Aultman. Through the community we came
up with the policy that we now have.

Once we received the Tippecanoe information, the court in Indiana
had made it abundantly apparent that there was no constitutional basis to be
testing kids from leadership or from the band, that it wouldn't fly, you know,
our goal was to protect our athletes. That's‑‑that's where our
major concern was. Therefore, the case in Indiana seemed to fit better than the
program at Hawkins, so we made some changes in what we had proposed.

* * * *

[128] Q. (BY MR. MULLMAN) Mr. Svenson, we had just completed, I
think, at the break discussing the diagram of the locker room. What I would
like you to do now, is turn to the Big Elk. There was some testimony about
that.

Did you during the 1988 school year have occasion to have members
of the Big Elk in your particular classroom?

A. Yes.

Q. And there's been some testimony that there were eight or nine,
perhaps as many as ten [129] members of that. Is that your recollection?

A. The Big Elk was‑‑it wasn't like a club of dues and
stuff, it was‑‑nobody demonstrated a call, you know, the mating
call.

*60a
Q. I don't believe you need to do that.

A. There were probably ten or so kids that were the core of what
became a group of approximately 30 to 35 kids that were‑‑would walk
down the hall and greet each other with this obnoxious greeting.

Q. And these individuals, were some of those individuals in the
Big Elk students athletes?

A. I can only think of one that wasn't.

Q. And what type of behavior did you observe of these students?

A. In my classroom?

Q. Yes.

A. I had these students in sixth period U.S. History class. These
are‑‑they're sitting in the classroom now and would be talking
about let's say the Holocaust, as an example, because I remember this incident
specifically. And these two kids started (demonstrating) laughing. Just burst
out laughing.

I thought maybe‑‑I thought maybe had [130] done
something, so I stopped and said, "what's so funny?"
"Nothing." So I go on and that pattern was‑‑that pattern was
repeated two or three times that day. I took the kids out. You know, I tried in
all my teaching career of 23 years to not have to send kids to the office. So,
you know, I took them out on the porch behind my classroom and just talked to
them and said, "this is not appropriate. You can't just burst out laughing
at a‑‑you know, these kinds of issues."

Then we come back in the class. Other kids in the group would then‑‑as
we're trying to discuss this or whatever would start just almost yelling at
these kids, you know, about different‑‑different things.

This giggling between these two kids went on‑‑off and
on for two or three months. It was‑‑the‑‑then, you
know, there were a couple of other kids that would come into class four days
out of five with no problem, and then all of a sudden it would be just a‑‑you
know, like I came in one day, I walked in my classroom and a kid was *61a laying underneath three desks.
You know, and I said, "what are you doing?" "I was just taking a
nap, man."

* * * *

[131] Q. Did you notice that your disciplinary referrals increased
in the '87‑ 88 period?

A. Mine did, yes.

Q. In your own classdoom?

A. Yes.

Q. You testified earlier that one of the reasons that you wanted
to adopt drug testing policies regarding safety‑‑

MR. MULLMAN: And I apologize, Your Honor, I'm not sure I covered
this. I want to make sure I did.

Q. (BY MR. MULLMAN) What concerns with [132] safety did you have
for those athletes?

A. First and foremost I think anybody that coached at that period
of time had to be influenced by the death of Len Bias, the basketball student
at the University of Maryland and Don Rogers a football player with the
Cleveland Browns who suffered a heart attacks from overdoses of cocaine.

I was concerned that kids would be using amphetamines and they'd
get hurt and not‑‑you know, not be able to recognize it and play
beyond what they could‑‑you know, normally you can play football in
some amount of pain, but amphetamines may mask like a knee injury on the field
and the kid may not feel the full effect of it and continue to play and injure
it worse.

I had an almost fanatical fear of a kid being hurt, being taken to
the hospital, refusing to admit that he was using a certain‑‑I'll
say speed, and being injected with pain killers or whatever and having a
reaction to it. Those kinds of concerns. I was concerned because you just‑‑I
don't know, I guess because I want the kids to use the athletic program to‑‑as
a way to get through being a teenager and have in Vernonia especially have
something to do, but get through it safely.

*62a
[133] I don't‑‑you know, I don't want any kids to emerge from our
program not being able to function and those kinds of concerns.

Q. Were you concerned about the safety of teammates and opponents?

A. In a sense that‑‑that the‑‑if a student
was using drugs and playing in particular‑‑in particular football
and wrestling, you could‑‑there is a chance that kids could go
outside the rules of the game and create injury situations to opponents or come
flying into a pile in football for example with his head down and hit a
teammate in the back. Those kinds of things. I have to say that that concern
was there, but it wasn't the primary concern. My primary concern was for each
individual's kid's own protection.

Q. From your experience is there a difference in the pressures
between, say, interscholastic athletics and say for instance the P.E. class?

A. Yeah. There's no real comparison between P.E. classes and
interscholastic athletics in terms of, you know, for example pressures on the
kids to perform. If a boy comes into a P.E. class, for example, in my weight
training class and says he's [134] not feeling‑‑you know, feeling
well, he has a strained muscle in his back or something, he doesn't participate
and usually they will tell you that.

Kids want to play in games and oftentimes they won't tell a coach
when they're hurt. And there's that pressure. The workouts themselves are‑‑are
much, much more strenuous. First of all, in a high school P.E. class the actual
activity length of time by‑‑you know, by dressing down and having
to shower and so on, the maximum time is 33 to 35 minutes of exercise, and that
includes‑‑that would include a period of time to stretch and warm
up.

In wrestling, for example, when kids use‑‑use the idea
that they determine the physical difficulty of the practice by the number of
pounds they lose, they sweat off during
*63a a practice, they have a two‑pound practice or three‑ pound
practice, or once in a while a four‑ or five‑pound practice,
depending on the kid. And there's just‑‑there's no pressure, for
example, in teaching a class. There's no pressure. Nobody says you know,
"did you win?"

You know, you don't go home on Friday [135] afternoon after
classes and say,"did you
win?" And the kids aren't asked when they come out of P.E. class,
"did you win today?" You know. I mean, there's that kind of
competitive situation.

Q. Prior to imposing this drug policy did you try other
educational programs to reduce drugs in the school system?

A. Yes.

Q. What did you do?

A. Well, I teach modern problems class which is a class that's
dsigned to deal with whatever problems the kids find important. So we dealt
with the problem of drugs. You know, we discussed the health aspect, the social
aspect, what pressures were put on kids to do drugs, was their peer pressure.
You know, those kinds of things.

I've done the reports, the kids have researched the drug, effects
of the drugs, we looked at movies. We participated‑‑my student
leadership class participated in the month long program we talked about. The‑‑this‑‑we
were sort of the climax of the four‑day thing in the spring right before
spring vacation of '88. My student council, we shut off the lights in the gym.

The student council kids came in one at a [136] time with a
flashlight under their face, you know, with their faces in white and read off
the statistic about, you know, I'm number‑‑we talked about the
number of people killed by drunk drivers in the last 20 years and kids would
say, "I'm number 5,102, I was driving to the prom," so on, so forth,
you know. Had the lights out and just the flashlights.

The student council kids totally forgot about the assembly.
However, the next day five of our best sophomore *64a athletes skipped school and went to one of their kids' houses
and were arrested for drinking and using marijuana.

Q. Now, this month‑long program culminating in the four‑day
event‑‑there's some confusion about the date. Are you fairly
certain about when that was?

A. It was when the group that had been‑‑you know, Big
Elk group, it's when they were sophomores. They graduated in 1990. So they were
juniors in '88‑89, so they would have been sophomores in '87‑88,
yes.

* * * *

[139] CROSS‑EXAMINATION

* * * *

Q. Are you close enough to hear the sound of urination?

A. Our locker room sometimes because of echoes from the gym and so
on, so forth, sometimes you would be very difficult to hear it. If there was no
P.E. class or any other activity in the gym or anywhere, I could hear them
probably if I was to listen close.

Q. Have you caught anyone attempting to cheat?

A. Have I personally?

Q. Yeah.

A. No.

Q. You would agree, wouldn't you, that the risk of injury is
inherent in all sports, isn't it?

A. Yes.

Q. And the degree of risk depends on sports?

A. Yes.

Q. It's greater risk for contact sports than for non‑contact
sports?

A. Yes.

Q. Now, you have four non‑contact sports in the district,
don't you; golf, volleyball, track [140] and cross country?

A. I believe that's correct.

*65a
Q. So really what you're concerned about is wrestling and football?

A. No. What I'm concerned about is the safety of every single kid
that participates in athletics.

Q. But the risk is greatest in those two sports, isn't it?

A. Yes.

Q. You mentioned two athletes who died, you believe, from cocaine
overdose. Who were those?

A. Those‑‑to say that I believe they died from cocaine
overdose makes it sound like that was my opinion. The autopsy reports on both
Len Bias and Don Rogers were published in every newspaper in the country saying
yes, they died from heart failure caused by an overdose of cocaine.

Q. Len Bias was a basketball player?

A. From the University of Maryland, yes.

Q. Don Rogers, what was his‑‑

A. He was a defensive back for the Cleveland Browns.

Q. Neither one of them died on the playing field, did they?

[141] A. No, they did not.

Q. You talked a little about the educational program. That was
tried before the drug testing program?

A. Yes.

Q. You didn't see immediate results apparently?

A. No.

Q. Do you expect immediate results when you teach students
something?

A. In areas where their health, immediate health is at risk, you
could anticipate that after a period of weeks that there would be some
indication, yes.

Q. Well, takes time to change behavior, doesn't it?

A. That depends on the behavior, I believe.

Q. Well, things seem better now than before, correct?

A. For who?

Q. For you as a teacher and coach?

A. In what manner do you mean?

*66a
Q. Student behavior, deportment.

A. Yes.

Q. And that could be the result of the seeds [142] that you sowed
back in the education program?

A. Those kids that are in my classes now were not in those
education programs.

Q. Maybe their older brothers and sisters were?

A. Some of them were, yes.

Q. Education is a long‑term process, isn't it?

A. Yes.

Q. I guess I sense that you feel like you failed the educational
mission when you adopted the drug testing policy, is that fair?

A. I don't feel that I failed. I felt that myself and my
colleagues did everything educationally that we could find to do to change the
behavior of the students. I believe and I believe today that the drugs mask the
intellect of the person. And I don't think that you can educate people as long
as they're under the influence of drugs. I don't think that you can keep them
safe. I don't think that you can keep them healthy.

[37] Q. In your opinion, would you expect that teachers and
coaches and administration staff in a high school or a middle school could
effectively observe students and determine which ones were under type‑two
impairment for marijuana use?

A. No. In fact they'd even have some trouble with type‑one
because they see such a wide swing of behavior. Adolescents are characteristic
for giving a lot of behavior, including mood swings and unpredictability, and
all kinds of things. So it becomes even difficult to identify type‑one
impairment among adolescents because they're so all over the place. But type
two, they'd have no possibility of doing that. So I think the fact is that even
if they were specially trained they would miss 90 percent, more than 90 percent
of the impairment caused by drugs and alcohol.

Q. In the drug‑abuse treatment field, what is the standard
for determining impairment among patients?

A. The only standard is the drug test. I know of no other way that
anybody who‑‑counselors or‑‑who counsels or treats drug
addicts could do it [38] without a drug test. They would never, in my
experience, use observation as the basis. And these are people that are known
to be drug addicts. You think about how different that is from a school
situation where you don't know the person is a drug addict. You see them in a
sea of *68a faces. And here's a
counselor who knows this person is a drug addict and still can't tell whether
the person is using or not. And that's why they do the drug test.

* * * *

[45] Q. What affect does school leaders' or student leaders' drug
use have upon this progression on other students?

A. Well, within‑‑I think this is true for all human
populations, but it's particularly true in the middle school and high school
area‑‑and that is that the definition of what's desirable, the [46]
definition of how you're a winner, is made on the basis of the status of the
individual in the peer group. And the people who are at the top of that status
hierarchy are the ones whose behavior is going to be emulated by the other
students. So that the leaders play a very powerful role in terms of shaping the
behavior of large numbers of students in the classes. And what they do about
drugs makes an enormous difference about what other kids are going to do who
are watching them and making up their minds about what they want to do.

Q. Doctor, are you generally familiar with kinds of
interscholastic athletic events that middle school and high school students
participate in?

A. Yes, I am.

Q. Have you observed middle school and high school interscholastic
athletic events?

A. Yes, I have.

Q. Are you generally familar with the risks and physical stresses
associated with interscholastic athletics for middle school and high school
students?

A. Yes, I am.

Q. Doctor, do you have an opinion of whether students who
participate on interscholastic athletic teams in the middle school and high
school level who [47] use drugs are at a greater risk of injury to themselves
or to others than those students who do not use drugs?

A. Yes, I have an opinion.

*69a
Q. What is that opinion?

A. That they are a substantially greater risk.

Q. What is the basis of your opinion?

A. There has been an enormous amount of research on accidents and
injuries in large numbers of contexts, including studies of people's behavior
when they have been given drugs, to watch how they behave. All of the elements
that go into having an accident occur have been studied in laboratory settings
to demonstrate that the drug experience is highly correlated‑‑with
drug intoxication impairment‑‑is highly correlated with accidents
of all kinds. So the accidents associated with athletics are not different in
terms of the mental capabilities required to avoid the accidents or the
impairments that promote the accidents than any other sort of accident.

And I just would call your attention to one particular study that
I think is very compelling in the state of Maryland. The shock trauma unit‑‑that's,
of course, where my office is in Maryland‑‑[48] studied 123
consecutive people who were brought there after accidents, injuries and
accidents of all kinds, vehicular accidents and any other kind of accident,
accidents in the home and biking and everything, every kind of accident in the
state, and it was surprising to many people that 35 percent of the people had
blood levels of marijuana. Now, unlike a urine level, a blood level means that
they'd used very recently before the accident, and that was higher than the
percentage who had used alcohol. The alcohol percentage was 33 percent. So that
was pretty powerful evidence.

Other studies have shown very high correlation with cocaine in
accidents. I don't know of any studies specifically of athletes generally as a
group, or of high school athletes, but all the elements that go into the risk
of an injury and an accident in an athletic context are present in every other
kind of human activity that has been clearly shown that drug use is a major
risk factor in those situations. That's the reason that safety is one of the
two *70a principle indicators for
drug tests is because of the connection between drugs and accidents.

Q. And how is it that drug use increases these [49] risks?

A. It leads people to take risks. It leads people to be careless.
It leads people not to follow instructions to reduce the risks. So that people
are impulsive, careless; they're operating outside of the guidelines that they
have learned and, therefore, increase their probability that they're going to
have an injury.

Q. How would a middle school student who's under marijuana
impairment be at a greater risk of injury while participating in football, for
example?

A. The person would not be‑‑if they were trained, for
example, to tackle above the waist to try to reduce injury, they might go for
an easy tackle and go after the other person's knees. They might use a blocking
technique that they were specifically trained was a risk to the other person
and use it anyhow. They might be involved in using a technique in terms of
their own behavior that would put them at risk of a head injury or spinal cord
injury or some other kind of injury.

Q. So the risks associated with drug use to high school and middle‑school
athletes is not only to themselves, but to those other students who are on the
athletic field or the practice in the gymnasium [50] with them; is that
correct?

A. That's correct. And I think it's very important to understand‑‑this
is a general statement about drug problems, including accidents‑‑that
one of the concerns is that somehow the drug user is, himself, the only victim
of his drug use. One of the myths about drug problems, including accidents, is
that the drug user is only risking his own health or safety, and this is
clearly not the case. The consequences of the impairment of drug use are shared
by everyone who shares the environment in which the drug‑impaired person
is, and that very much includes the athletic field where the body is being
pushed to the limits. *71a That's
what competitive athletics is all about. And where there is clearly a
substantial risk, athletes have injuries. It's a ubiquitous aspect of athletic
competition is injuries. And a lot of energy is devoted to training athletes
how to avoid injury to themselves and other people in the‑‑on the
playing field. And drug use is‑‑undermines that. Drug use takes
away the protections that exist, not only for the individual himself, but for
the other people with whom he shares that practice field.

Q. Are you generally familiar with the types of [51] athletic
injuries that are common in middle schools and high school interscholastic
sports?

A. Yes, I am. And I think it's important to know that those are
the major‑‑by far the biggest amount of injuries‑‑largest
amount of injuries related to sports, because so many more people are involved
in the middle school and high school athletics.

If you're talking about sport safety, where the action is is not
at the professional or the college level but it's at the middle school and the
high school. The intensity is very high. The training is much less than it is
at the college and professional level, and the numbers of people involved,
including the injuries, are so much greater. So I think if one is concerned
about reducing injuries in sports generally, and I think everybody in sports
medicine is, the action is in the middle school and high school population.

Q. How would drug use affect a student athlete's perception of an
injury he or she may have sustained out on the volleyball court, for instance?

A. The person is very likely to play even with the injury and be
oblivious of it, if the person is impaired with drug‑‑by drug use.

[52] Q. Are there other effects, for instance, of cocaine or
amphetamines that an athlete who is engaged in some activity at a high level
should be concerned about?

A. Other‑‑say that again.

*72a
Q. Are there other‑‑what are other possible effects of cocaine use
on an athlete‑‑

A. Oh.

Q. ‑‑who's engaging in a strenuous activity?

A. Remember I was talking about the Len Bias example. He wasn't on
the athletic field when he died, but that would be an example of the sort of
thing. Cocaine, in particular, because of its effect on the heart, has an
unpredictable effect, and it does raise a substantial risk for cardiac arrest
for‑‑and a fatal arrhythmia. So that cocaine in particular is a
risk, not just in terms of playing through pain or not attending to the
training that the person has, but also in terms of the heart danger because the
athletics itself often raises‑‑I mean, does always raise the heart
rate in competitive athletics to high levels. And you add to that the
unpredictable effect of cocaine and you have a very dangerous combination.

Q. If a student has used cocaine while [53] participating in an athletic
event, for instance, a handful of times, does that necessarily mean that that
student will always‑‑will not encounter any negative effect?

A. No. It could be very unpredictable. It can be the tenth time or
the hundredth time that the person has a problem. It doesn't happen right away.
In fact, in general, if drug problems happened earlier and more predictably, we
wouldn't have the drug use that we do in this society. The way it happens is a
delay with respect to any individual, uncertain expression of the negative
consequence, and that permits the denial to go on, and that's one of the major
factors that perpetuates the drug addiction.

Q. Are these risks associated with drug use for interscholastic
student athletes greater than for those students participating in a P.E. class?

A. Well, the level of intensity is enormously different in the
typical interscholastic competition from the P.E. class. I think they're in the
same family, but the relative risks are very different in terms of the‑‑in
terms of *73a the intensity, the
speed, the effort. The duration of the effort is much greater in
interscholastic than it is in a P.E. [54] class.

* * * *

[55] Q. In your opinion if a student athlete tests positive for
the presence of cocaine, marijuana or amphetamines, is that student under
substantial risk of injury to him or herself or to others?

A. Yes, I believe that student is.

MR. POWELL: Sure. Why don't we take a break for about five
minutes.

(Recess.)

MR. POWELL: Back on the record.

Q. By MR. POWELL: Doctor, is it the impairment [56] effects that
make students who are testing positive for drugs at a greater risk than other
students?

A. Yes.

Q. And can you just briefly summarize what those impairment
effects are?

A. The main effects have to do with the fact that the student is
distracted by what's going on in his or her brain from the drug use. So it has
to do with not attending well to whatever else it is that's going on. So it's
kind of a distraction problem. But also there are specific problems that
happen; for example, the dulling of pain, the difficulty of judging time and
distance properly, memory impairments where the person has trouble recalling
directions and has trouble recalling and using training. It has to do with risk‑taking
where a person is prepared to put himself or herself at added risk. So there's
a very broad range of impairments that are related to drug use that directly
lead to increased risk of accidents in all settings, including student
athletics.

Q. Doctor, in your opinion, are there substitutes for drug testing
by urinalysis to detect drug impairment among high school student athletes?

A. Well, there has been a very large effort [57] made to find
suitable impairment tests. And the basic reasoning *74a for this is to find some kind of a screening test that would
be the equivalent of the roadside sobriety test to establish probable cause or
a reasonable basis for a drug test. So there's been a lot of effort made to
look for those sorts of tests. It's a major funding area of the National
Institute on Drug Abuse. The simple summary of the report of that work is that,
with some interesting exceptions, it has not proven to be of any value. In
fact, it actually creates problems when these sorts of tests are introduced,
because the tests are not well correlated with drug use or drug‑caused
impairment; they both under identify drug problems and over identify other
problems. So that they end up missing large numbers of people who have drug‑caused
impairment, and they include people who have no impairment whatsoever in them.
They're also extremely subject to subversion. The simple thing that is done
with these tests is for the drug users to learn ways to get very low baselines
on the tests, and then when they're retested, they don't‑‑even when
they're very impaired they still past the test.

So we could talk in some detail‑‑I don't know how much
detail you want to get. But the bottom [58] line is that in no setting is there
an impairment test of any kind. People talk about the rapid‑eye movement
test, for example, computer‑ assisted testing, as well as simpler kind of
tests like hand/eye coordination and other kinds of things, and none of these
have proved useful in any setting whatsoever as an alternative to the drug
test. So in every setting where there's a concern about safety, the drug test
is the test that is used.

One other things I should say about some of the tests, the one
from the Los Angeles Police Department, which is probably the best of the
performance tests, takes 45 minutes for each person. You think about what that
means. That means that it takes a trained individual 45 minutes to assess
impairment of a single person. Well, that obviously makes it totally unsuitable
for any kind of screening purpose. And its application, outside of a *75a very narrow one in law
enforcement, even if it worked, would be‑‑it would be irrelevant.

* * * *

[71]

EXAMINATION

BY MR. CHRIST:

Q. Doctor, have you been to Vernonia?

A. No, I have not.

Q. So you have no firsthand knowledge of the extent of the alleged
drug problem there, do you?

A. I do not.

Q. Likewise, you have no firsthand knowledge of the affects of the
school's drug testing policy on students there, do you?

A. I do not.

Q. You've never met my client, have you?

A. I have not.

Q. So you have no idea how this policy is affecting my client?

A. I do not. That's correct.

Q. Wouldn't you agree that some risk of injury is inherent in all
sports?

A. Oh, yes, sir.

Q. I think you testified that the risk of injury to the athlete or
his opponent increases if the athlete is under the influence of illicit drugs;
is that correct?

A. Yes, sir.

Q. Wouldn't you agree that the degree of risk [72] depends upon
the sport?

A. That's one of the factors.

Q. And the risk would be greater for, say, a contact sport such as
football than a non‑contact sport such as volleyball, cross‑country
or track?

A. Correct.

Q. Wouldn't you agree that the risk of injury to your opponent is
negligible in a non‑contact sport?

A. In general, I think that that's true, yes. Volleyball you're
only on your side of the net.

*76a
Q. And the risk of injury would be diminished to the athlete himself in a non‑contact
sport, too?

A. That's right.

Q. Do you know what sports the Vernonia School District offers?

A. I think a fairly broad range, but I don't know exactly which
sports.

Defendant Veronia School District hereby responds to Plaintiffs'
Interrogatories to Defendant as follows:

INTERROGATORY NO. 1: Has any student been injured while under the
influence of drugs in participating in a district‑sponsored athletic
event? (For each injury, please identify the student who was injured, the date
of injury, the sport in which the injury occurred, and the name of the coach
who was supervising the sport at the time of the injury?) [sic.]

RESPONSE:

The District has reason to believe that a student was injured
while under the influence of drugs while participating in a District‑sponsored
athletic event, although this was not confirmed through tests. This incident
occurred in February 1989 in a wrestling match under Coach Ron Svensen. The
student name will not be released as it would result in a violation of the
Family Education and Privacy Rights Act (20 U.S.C. s 1232g and ORS 336.195.

INTERROGATORY NO. 2: Has any student caused an injury to another
student while the first was under the influence of drugs in participating in a
district‑ sponsored athletic event? (For each injury, please identify the *80a student who was injured, the date
of injury, the sport in which the injury occurred, the name of the coach who
was supervising the sport at the time of the injury?) [sic.]

RESPONSE: The District has not been able to confirm through tests
or through any other means that any student has caused an injury to another
student while the first was under the influence of drugs while participating in
a District‑ sponsored athletic event.

[7] Q. Do you know what percentage of your students participate in
a sports program?

A. No.

Q. Do you have any way of finding out?

A. Sure.

Q. How would you do that?

A. I would ask the building principals to give me a list.

Q. Are you required by state law to offer sports?

A. No.

Q. Do you think participation in sports is an important part of
the school experience?

A. Yes.

Q. Does your curriculum included physical education?

A. Yes.

Q. At what grade levels?

A. I believe it starts at kindergarten, K through 8 is required,
and we have two required units at the high school.

Q. Then is it an elective beyond those two units?

A. Yeah.

Q. What I mean by that, if a students wants more P.E. they could?

A. If it was available. I am not sure spacewise how much of it is
available.

*82a
[8] Q. In the P.E. classes do students play some of the sports you previously
mentioned?

A. Yes.

Q. Do you require drug testing as a condition of participating in
P.E.?

A. No.

Q. Do some of your students drive cars to school?

A. Yes.

Q. Do you have district regulations regarding driving cars to
school?

A. I don't believe so.

Q. Do the students who drive cars include both athletes and non‑athletes?

A. Yes.

Q. Do some of your students take illegal drugs?

A. I don't know that.

Q. Have you tried to find out?

A. Have I tried to find out? I don't understand.

Q. Have you done anything to try, other than mandatory drug
testing, to ascertain whether any of your students are taking drugs illegally?

A. Yes, we have.

Q. What have you done?

A. I believe it was in the fall of 1990 we had a police officer,
state police officer, come into the district [9] and train some of the
administrators in drug detection, and I believe it was using what they term the
Rapid Eye Movement Test.

* * * *

[12] Q. Were the surveys anonymous?

A. Yes, I believe so. To‑‑

MR. POWELL: There is not a question pending. Do you need to
clarify your answer?

A. Yes. I think another aspect of what you may or may not be
asking is a fact that we have a drug and alcohol program which we do for all
the kids. We are required by law to do that. In terms of teaching kids *83a about the use of drugs and those
type of things if that is‑‑I don't know if that is what you are
leading at, but we have that program in place.

Q. I will get to that in a moment. What I want to know now is what
steps you have undertaken to ascertain that you have a problem. You have
described these surveys. Other than the surveys, what have you done?

A. The staff have gone to the building administrators, the
building principals, with concerns about things the kids were telling them,
observations they have had. Those were not things that, quote, we have done per
se, but they have occurred.

Q. Since the fall of 1989 have you determined that any particular
student has taken illegal drugs?

A. Yes.

Q. More than one student?

A. I am not sure we have. I believe two confirmed [13] positive‑‑no‑‑yeah,
maybe two confirmed positive.

Q. Were those students disciplined?

A. No.

Q. What did you do with those students?

A. According to our policy, the student was given an option of
continuing to participate in the sports program, undergoing a weekly urinalysis
and getting some type of drug or alcohol counseling, drug counseling. The
student chose to do that in one case.

In another case a student came up positive on the first test and
refused to take the second test and quit the program voluntarily.

MR. POWELL: I am going to make a quite belated objection, but I
took this last series of questions to mean talking about determining drug use
through the drug testing program as opposed to other instances where a student
may have been caught with drugs or what have you. So to that extent I thought
the question was vague, and that is the way I perceived Mr. Mason's answers
through that last series. I don't know if you want to clarify that.

*84a
Q. I see the confusion. Let's go back over that. Other than through the
mandatory drug testing policy, have [14] you determined that any particular
students have used drugs illegally?

A. There have been students who have admitted that they have used
drugs. And I am not aware that we have ever determined it outside of our drug
program.

Q. Through the drug testing program you have determined that two
particular students have used drugs?

A. I believe that is correct, yes.

Q. Do you know what percentage of students who play sports take drugs
illegally?

A. No.

Q. Have you made any effort to determine that other than through
the drug testing program?

A. No.

Q. Do you have any reason to believe that a greater percentage of
athletes, student athletes, take drugs than students generally?

A. I think student athletes have reasons to take drugs which other
students don't. Whether it is more than or less, I don't know.

Q. What would be those reasons?

A. Well, you get pumped up for a game, play with pain or eliminate
pain so they could play.

Q. Do some of your students smoke tobacco?

A. Yes.

* * * *

[21] Q. Do you know if any students avoid random testing entirely
for a year?

A. I don't know that. It is mathematically possible.

Q. So there is no guarantee that any particular student will be
tested at least once during the year?

A. Yes, they are all tested at least once.

Q. At the first test at the start of the year?

A. Correct.

*85a
Q. Now, you said the start of the year. Do you mean the start of the sport
season or the start of the academic year?

A. As an example, if a student plays football, which occurs in the
fall, they get tested at the first of the academic year, or first of the
season. If that same student plays basketball, they are not retested at the
beginning of the season. If a new student comes out who has not participated in
the fall and comes out for a winter program, they are tested.

Q. The testing is by urinalysis, correct?

A. That is correct.

Q. How is the urine specimen obtained?

A. The students urinate either into a cup or a vial of some sort.

* * * *

[24] Q. Do you know how many tests you do in a year?

A. No.

Q. I believe you said there have only been two positive results
since you began.

A. Only two that I believe we have confirmed positive. That is to
the best of my recollection.

Q. Do you know what grades those students were in?

A. I believe they were high school students.

MR. CHRIST: Why don't we take a break for a minute and I will see
if I have anything else for you.

[Break].

[Student Athlete Drug Policy, EXB. 1, marked]

[Logger Handbook 1991‑1992, EXB. 2, marked]

[Memo dated 10‑4‑89, EXB. 3, marked]

[Student Survey on Fall Sports, EXB. 4, marked].

Q. Mr. Mason, you have listed some of the drugs that you test for,
not including marijuana. Do you test for marijuana, in fact?

A. Yes, we do.

*86a
Q. Do you test for steroids?

A. No.

Q. Do you test for any performance enhancing drugs, such as
steroids?

[25] A. Not that I am aware‑‑I don't know in terms of
the physical manifestations of the drugs we test for whether they would be
considered performance enhancing.

Q. Drugs specifically designed to enhance athletic performance as
opposed to a drug that a particular student might perceive as enhancing his or
her performance.

A. The only drug that I am aware of that would be classified as
that would be steroids, and we don't test for steroids.

Q. I would like you to identify some exhibits, if you would,
please. I am handing you Exhb. No. 1. Do you recognize that?